Patricia Robertson QC
Call Date
1988
Silk date
2006
Practice Areas
Patricia Robertson has a broadly based commercial and civil practice dealing with commercial disputes of all kinds but with particular emphasis on:
- Professional negligence;
- Professional disciplinary proceedings;
- Banking & Finance;
- Electronic commerce;
- Public Law and regulatory law (including financial services)
- ADR
Recommendations (Practitioners' Guides)
Patricia is recommended in the fields of Banking & Finance, Professional Discipline and Professional Negligence in Chambers Directory and, in Banking, in Legal Experts and in Legal 500.
Comments made about her in the Directories include:
"extremely thorough and a real glutton for papers"..."a real tiger" in contentious matters (Chambers 2007)
“immense intellectual firepower” (Chambers 2006)
“a tenacious and enthusiastic advocate”, “tough” (Chambers 2003-4)
Education
Balliol College, Oxford (BA in Modern History)
City University, London (Diploma in Law)
Prizes & Scholarships
Brackenbury Scholarship, Balliol College, Oxford
Duke of Edinburgh entrance award, Inner Temple
Other Qualifications
CEDR accredited mediator
Professional Experience
- Patricia has been involved in a number of particularly large and long-running pieces of litigation over the years, especially several lengthy professional negligence trials in fields such as fund management, accountancy and legal services, and she is very familiar with the challenges of managing large scale litigation and of working within a team involving large numbers of lawyers and experts in different fields or multiple jurisdictions.
- Patricia relishes advocacy in all its forms and believes that practising across a number of different fields is a positive advantage in keeping advocacy skills sharp and legal thinking flexible. Her experience ranges from prosecuting doctors for gross professional negligence before the GMC (where the ability to cross-examine on the hoof is critical); to arguing abstruse points about the precise legal characterisation of the Law Society’s powers as statutory trustee (requiring mastery of a complex body of case-law going back to the 1700s); or addressing the other side in the opening session of commercial mediations (where the challenge is to engage an audience who don’t want to hear what their opponent’s lawyer has to say).
- Much of Patricia’s practice in recent years has been dedicated to ensuring that her client’s problems do not become a reported case: for example, advising regulated firms on how to achieve a given business objective without falling foul of the regulator, particularly in the field of electronic commerce; and mediating (as advocate) a succession of very large professional negligence/commercial claims for sums ranging from the tens to hundreds of millions, all of which were successfully resolved without a writ being issued. Latterly, she has qualified as a CEDR accredited mediator and has acted as assistant mediator to a number of the leading mediators in mediating commercial disputes.
- Patricia is a co-author of “The Law of Bank Payments” eds Brindle & Cox, 3rd Ed (Sweet & Maxwell), and has contributed a chapter on Expert Witnesses to "Professional Negligence and Liability" ed Mark Simpson (LLP), amongst her other publications.
Recent Practice
Administrative, Public Law & Regulatory Law:
Patricia frequently acts for the Law Society on judicial reviews relating to interventions, handling of complaints or applications to the Compensation Fund. Applicants often seek to raise Human Rights issues. She has acted both for the Law Society and for the solicitor in cases before the SDT. Patricia also has experience acting for other regulators, such as the GMC, and is therefore well-placed to deal with the issues of principle that are common to different regulatory fields. Some examples:
- Patricia has advised both the Bar Standards Board and the Solicitors Regulatory Authority on the application of the Legal Services Act 2007.
- In December 2005, she appeared for the Compensation Fund at the hearing of a test case before Lawrence Collins J in which the Law Society was applying for directions as to the administration of some £50m of statutory trust funds that have vested in the Law Society following interventions: In the matter of the Interventions into the solicitor's practices formerly known as Ahmed & Co, Biebuyck Solicitors, Dixon & Co and Zoi. The case raised a novel issue as to the nature and scope of the Law Society’s powers and duties as statutory trustee and required an analysis of voluminous case-law on private trusts and public law. Although instructed by the Law Society, Patricia's role was to put before the Court arguments contrary to the Law Society's primary case, in a manner analogous to an "amicus", in order to ensure the arguments on both sides were fully considered.
- In April 2005 Patricia obtained a judgment by Sullivan J in favour of the Compensation Fund that decisions whether or not to award grants do not engage Article 6: Collins v Law Society.
Patricia has experience of advising both regulator and regulated in respect of various issues arising under the FSMA 2000 and, in particular, in respect of the regulation of electronic money and of financial services provided over the internet and/or cross border. For details of this work, see under "Banking & Finance." Patricia sees her work in the field of professional regulation and discipline as a natural fit with her professional negligence practice: for example, in handling or defending claims against financial services firms a thorough knowledge of their regulatory obligations is essential: see under “Professional Negligence”.
Patricia has lectured at a number of conferences on topics related to the field of regulation, such as separation of powers, the Strachan Review, the impact of human rights and the relative merits of different methods of challenging FSA decisions.
Arbitration:
Patricia acted (with Michael Brindle QC) for a major clearing bank in an LCIA arbitration over defects in processing systems for credit and debit card transactions. She has taught advanced advocacy in international arbitrations at a course run by a major US law firm.
Banking & Finance:
Patricia identified early on the need for a treatment of the ways in which banking law has been affected by the development of electronic commerce and has contributed chapters on “Plastic Money” and “Internet payment” to “The Law of Bank Payments” eds Brindle & Cox, which is now in its 3rd edition.
Patricia has built up an advisory practice advising the regulator, banks and other financial service clients on issues relating to electronic commerce and internet banking and on regulatory issues. This has included:
- Advising on various passporting issues in relation to a scheme to provide insurance for mobile phones sold in the UK via a captive insurer established elsewhere in Europe.
- Advising on regulatory issues arising from the transfer to a trustee of the property portfolio of a home reversion plan provider, as part of a restructuring of the group.
- Advising on application of the CCA 1974 and CCA 2006 to loans made as part of a film financing scheme.
- Advising as to whether providing deposit guarantees in respect of off-plan property purchases is to be classed as banking or insurance for the purpose of passporting the service into the UK under the FSMA 2000.
- Advising on interest rate swaps under ISDA master agreements.
- Advising a US company as to implications under the FSMA 2000, CCA 1974 and Money Laundering Regulations, of proposals to provide credit card processing services in the UK.
- Advising a Scottish insurance company on compliance with the regulations on distance marketing of financial services and on the application of various parts of COB and ICOB of the FSA’s handbook.
- Advising in relation to the regulation of “precipice bonds” under the FSMA 2000.
- Advising a housing association on whether a saving scheme for tenants required authorisation under the FSMA deposit-taking regime.
- Advising an insurance broker on the application of the client money provisions.
- Advising a mobile phone service provider on the regulatory issues, both under domestic banking regulations and the directives on E-money institutions, raised by a proposed electronic payment system for use in relation to WAP services.
- Advising on provision of credit card services on-line, in relation to the compatibility or otherwise of domestic consumer credit regulations, as they then stood, with paperless business (especially, the use of paperless agreements, e-mail account statements and web banner advertisements) and the impact of domestic and European legislation relating to E-commerce.
- Advising a major UK credit card issuer on cross border provision of credit card services.
- Advising a high street bank on setting up its internet banking service and, in particular, on the compatibility with current legislation of paperless agreements for banking services and on the likely impact of various applicable European Directives (E-Commerce, Distance Selling, Distance Marketing of Financial Services etc) and the (then) Electronic Communications Bill.
Banking litigation work has included a dispute between merchant banks over an option for gold bullion under an ISDA Master Agreement, raising issues of mistake and rectification.
Past cases in the field of banking & finance have included:
- Acting for a merchant bank in recovering substantial sums lost as a result of a massive fraud on the Bombay Stock Exchange.
- Acting (with Michael Brindle QC) for a Receiver by way of equitable execution in successfully resisting, at first instance, an application for a cross undertaking in damages in Ashford Hotels Ltd v Higgins and others (unreported at first instance, the decision was later upheld on appeal and reported as Allied Irish Bank v Ashford Hotels [1997] 3 AllER 309)
- Acting (with Conrad Dehn QC) for a number of local authorities in the local authority interest rate swaps litigation (negotiating the selection of lead cases and the terms of the cost sharing order for the lead actions and acting for various local authorities in resisting the restitutionary claims by banks).
- Acting for a building society in bringing claims for negligent lending against its agent (which involved analysing and pleading a case in relation to vast numbers of individual bad loans under the umbrella of master pleadings).
Civil Fraud:
Patricia acted (with Peter Goldsmith QC and, subsequently, with Nicholas Stadlen QC) for a Saudi Arabian Prince in seeking to trace and recover some $212m stolen from him by his personal assistant. After a hard fought campaign over a number of years during which time the case came before practically every Judge in the Commercial Court on a series of applications involving (among other things) obtaining a worldwide freezing order and ancillary relief, bringing related proceedings in a wide number of other jurisdictions and obtaining a succession of committal orders to enforce compliance, the majority of the funds were recovered.
Over the years Patricia has also accumulated considerable experience of tracing claims/world-wide freezing orders in connection with “standby letter of credit” or “prime bank guarantee” frauds, in particular in a case involving theft of over US$60m from the Republic of Nauru in which a significant proportion of the stolen funds was traced and recovered.
Commercial Litigation:
Patricia’s commercial cases have covered, in addition to the usual run of disputes over share sale agreements and the like, a broad field, including:
- A complex private equity dispute arising out of the refinancing of a BVI company, raising issues of BVI and Hong Kong law, as well as issues of English law as to the scope of the authority conferred by the Investment Committee of a private equity fund on its Adviser.
- A claim for quantum meruit for work done introducing investors to a start-up company trading carbon credits.
- A minority shareholder dispute arising from the collapse of an equity derivatives business.
- A claim for breach of fiduciary duty against an advertising agency which was alleged to have accepted kickbacks from manufacturers whose products it recommended for inclusion in the client’s promotions.
- Allegations of faulty manufacture of hip replacements (issues as to jurisdiction and proper law as well as complex technical issues relating to the quality of the product).
- A claim by a major UK supplier of digital set-top boxes for losses caused by defective microchips (issues as to contractual construction as well as technical issues relating to the mechanism of failure).
- Defending a claim for a commercial agent’s fees in relation to Iraqi business (issues of Iraqi law and illegality defences).
- A dispute relating to an exclusive distributorship of champagne.
- A claim relating to defects in computer software designed to track student numbers/courses attended for use by a Further Education College (issues of contractual construction of a poorly drawn IT contract).
- A challenge by one national newspaper to another’s audited circulation figures.
Employment:
Patricia has experience both of employment tribunal claims and of employment related litigation in the Courts. Her work has included obtaining strike injunctions against the NUM and RMT; obtaining and resisting interim injunctions against departing employees/directors/partners in cases involving restrictive covenants, garden leave clauses, breaches of confidentiality and/or breaches of intellectual property rights, for example (with Charles Falconer QC) Eurobrokers v Rabey [1995] IRLR 678; race and sex discrimination claims, including acting (with Nicholas Underhill QC) for Barclays in successfully resisting the claim brought by employees of East African Asian origin over pension rights Barclays Bank v Kapur [1995] IRLR 87. Her clients in employment tribunal cases have included major clearing banks, national newspapers and the BBC.
Financial Services:
See under Banking & Finance.
Human Rights:
See under Administrative, Public Law & Regulatory Law.
Mediation:
An increasingly large proportion of Patricia’s practice involves acting as advocate in the mediation of very large commercial/professional negligence disputes, often before any writ has been issued. Careful analysis and preparation is required for an effective mediation of technically complex/high value cases. This frequently involves the drafting of documents that combine the functions of pleadings, witness statements, expert evidence and opening submissions, requiring highly effective drafting. However, the techniques and purposes of advocacy in this context differ in important respects from a courtroom context and must successfully persuade the other party to readjust its risk assessment, often by reference to commercial as well as legal factors. Patricia has accumulated very extensive experience in the effective use of advocacy in the mediation of heavy and complex claims, many of them valued well in excess of £100m. In one year alone she dealt with 5 mediations of commercial cases valued at or above that level. Over the past 10 years she has accumulated a level of experience in this area which relatively few members of the Bar could match. Some of this work has been done instructed directly by the legal department of the company concerned. Patricia is now also a CEDR accredited mediator and has assisted in mediating a number of commercial disputes. She was asked to appear on a panel with Michel Kallipetis QC and Philip Naughton QC teaching mediation advocacy to members of the Bar.
Product Liability:
Patricia acted for the drug manufacturer in defending a large class action brought over Myodil, a contrast agent used in spinal x-rays (a case which required large numbers of defences to be pleaded under the umbrella of master pleadings).
Professional Discipline:
Patricia’s experience has included prosecuting a number of cases before the GMC, both alone and with a leader; advising in relation to proceedings before the Solicitors Disciplinary Tribunal; lecturing on separation of investigative and judicial functions in professional regulators and on the protections available to those being investigated by the FSA. See, further, cases under Administrative, Public Law & Regulatory Law above, and Professional Negligence, below.
Professional Negligence:
Patricia has acted for the BMIF in defending a number of claims brought against barristers. Most recently (with Ali Malek QC) she successfully defended a leading commercial silk against the largest such claim that the BMIF has until then faced (the claimant submitted to dismissal of his case and an order for indemnity costs in the 5th week of the trial, in July 2006).
Patricia has considerable experience of resolving complex and high value professional negligence disputes by means of mediation in situations where the client relationship or costs of trial make this the preferable course: recent examples include resolving a claim against a fund manager by a member of a Middle Eastern Royal family and resolving a multi-party dispute involving claims and cross claims between receiver, auditor and directors that was due to go to an 8 week trial involving experts from two disciplines.
Patricia acted for Mercury Asset Management in defending the claim brought against them by the Trustees of the Unilever Pension Fund for allegedly negligent fund management (settled in late 2001). This was a novel claim raising complex technical issues relating to measurement of risk in investment portfolios, as well as legal issues as to the scope of the duty owed by a fund manager and the correct approach to quantum in such claims.
Patricia very frequently advises and acts in relation to disputes over fund management and is currently working on a chapter on Liability of Fund Managers for “Professional Negligence and Liability” ed. Mark Simpson (LLP).
Past professional negligence cases have also included:
- Acting, in Brostoff & others v CKL [1998] PNLR 635 (CA), for an international association of accounting firms in long-running multi-party litigation in which we successfully resisted, at first instance and on appeal, claims brought by around 100 victims of a fraud perpetrated by the Executive Director of the association (subsequently the subject of a BBC drama series starring Hugh Laurie as the fraudster, Nicholas Young).
- Acting for actuaries in (successfully) defending a professional negligence claim relating to actuarial projections of reinsurance liabilities in the LMX market, in NRG v Bacon & Woodrow [1997] LRLR 678 (a trial which lasted around 9 months and involved at the outset 4 parties and 14 Counsel).
- Acting for NHS trusts in two high profile disciplinary proceedings against hospital consultants (Siddle and Ledward, both widely publicised cases of surgical and clinical incompetence involving a large number of patients).
- Acting for the GMC in prosecuting doctors accused of gross professional misconduct (in particular, in the Ledward case itself and in various other cases involving allegations ranging from surgical incompetence to drug abuse).
Publications
- Chapter on Expert Witnesses in Professional Negligence and Liability, ed Simpson, Informa, Looseleaf.
- Chapters on Plastic Money and on Internet Payments in The Law of Bank Payments eds. Brindle & Cox, 3rd Ed. (Sweet and Maxwell).
- Contributor to chapter on professional negligence in Bullen & Leake & Jacob’s Precedents of Pleadings, 16th edn (Sweet & Maxwell).
- Article on expert witness immunity (“Expert witness: professionally immune?” in Tottel’s Journal of Professional Negligence vol 23 No 2, 2007, 66).
- Article on the Payment Services Directive (The In-House Lawyer, Issue No 152, July/August 2007, p31)
- Article on application of Consumer Credit Act 1974 to credit card transactions over the internet (Credit and Finance Law, March 1999).
- Article on proposed Directive on Distance Marketing of Financial Services (Electronic Commerce Law and Policy, June 1999).
The Proposed Directive on Distance Marketing of Financial Services
The Professional Negligence section in Bullen Leake & Jacob’s Precedents of Pleadings
The Payment Services Directive
The Application of Consumer Credit Act 1974 to Credit Card Transactions over the Internet
Professional Negligence and Liability
Expert Witnesses: Professionally Immune?
Other Experience
Speaker at Informa’s prestigious annual Professional Negligence and Liability conference (2007).
Past speaking engagements have included speaking at Hawksmere, MetaGroup and ICC conferences on e-commerce related topics and at IBC and CLT conferences on regulatory/human rights topics.
Other lecture topics have included impact of the CPR on costs awards and implications of the Human Rights Act for professional disciplinary procedures.
Training experience has included teaching advanced advocacy for international arbitrations, teaching on the South Eastern Circuit’s advanced advocacy course, appearing on panel of a Bar Conference workshop on expert witnesses, running a training seminar for expert witnesses, providing training for new committee members of the GMC and appearing on the panel of a Bar Council seminar on advanced mediation advocacy.
Past Member of ICC (UK) Electronic Commerce Working Group and of ICC International Task Force on Jurisdiction and Applicable Law in Electronic Commerce.
Patricia undertook a “Stage” with an American law firm in Brussels in 1991, advising both on English law and on European law aspects of a wide range of commercial transactions. Much of the work was carried out in French or involved translation into and out of French.
Patricia speaks ungrammatical but functional Italian and has a good reading knowledge of Italian.
Languages
French
Italian
Interests
Patricia's other interests include "forging" Renaissance paintings to hang on her study wall, running a small organic fruit farm in Umbria (which currently produces no fruit) and practising her powers of persuasion and conciliation on an unruly household full of cats, guinea-pigs, goldfish and children in Highgate, London.