Fountain Court Chambers

London & Singapore

Patricia Robertson QCCall Date: 1988 | Silk Date: 2006

“She is in complete control, and has a critical eye but a calm and easy manner that instils confidence and makes her a delight to work with” (Legal 500, 2019)

“A very experienced and able silk who is very well-known and rightly well-respected” (Legal 500, 2019)

“Highly experienced in SRA investigations” (Legal 500, 2019)

She is excellent” (Legal 500, 2019)

“A very persuasive advocate who has ferocious intelligence coupled with commercial astuteness and approachability” (Chambers, 2016)

“A force of nature. She has a very quick mind and an electric personality, and is great fun to work with” (Chambers, 2016)

Patricia Robertson regularly has cases listed amongst The Lawyer’s top 20 cases of the year and has previously been named by The Lawyer as one of their “Hot 100” lawyers for her handling of major litigation spilling out of the recession, from professional negligence to regulatory to commercial disputes. In 2019, she was awarded Professional Discipline Silk of the Year by Chambers UK, awarded “Commended” for Barrister of the Year by The Lawyer and shortlisted as a finalist for Litigation Team of the Year by Legal Business. She continues to garner directory recommendations across the fields of Banking & Finance, Commercial Dispute Resolution, Financial Services, Professional Discipline and Professional Negligence.

Patricia is very familiar with the challenges of managing large scale litigation, particularly in the financial and legal sectors, and often involving parallel regulatory investigations. Patricia has a broadly based commercial and civil practice dealing with professional services regulation and commercial disputes of all kinds.  In recent years this has included: defending claims brought by the Danish tax authorities against multiple defendants relating to an alleged fraudulent scheme to reclaim withholding tax (2019); defending HSBC in respect of claims arising from the Stanford International Bank Ponzi scheme (2019); successfully defending the longest case so far heard in the SDT in SRA v Martyn Day and others (2017) and on appeal (2018); striking out a claim made against solicitors for steps taken in putting forward their client’s case in a private equity dispute Bronze Monkey v Simmons & Simmons (2017); defending claims arising from the collapse of Arch Cru, Keydata and the EVRF; regulatory investigations arising from the collapses of the Presbyterian Mutual Society, in Northern Ireland, and of Cattles, a sub-prime lender; advising on claims arising out of the acquisition of HBoS; acting as an expert witness in proceedings in the Dutch Commercial Court relating to the law of champerty; regulatory investigations involving a number of magic circle or national law firms; acting for the ICAEW in the appeal to the Supreme Court in R (Prudential) v Special Commissioner of Income Tax [2013] UKSC 1 (legal advice privilege); Al Sulaiman v Credit Suisse Securities (Europe) Limited and Plurimi Capital LLP [2013] EWHC 400 (Comm); (successful defence of misselling claim); Ageas (UK) Limited v (1) Kwik-Fit (GB) Ltd (2) AIG Europe Ltd [2014] (authority on use of hindsight in measuring damages); West and another v Ian Finlay & Associates (a firm) [2014] EWCA Civ 316 (leading case on effect of a net loss clause); Ridgewood Properties Group Ltd & Anor v Kilpatrick Stockton LLP & Ors [2014] EWHC 2502 (Ch) (strike out for abuse of process).

Equally, much of Patricia’s practice has been dedicated to ensuring that her client’s problems do not become a reported case: for example, advising firms on their own financial services or legal services compliance issues or on handling investigations; and mediating (as advocate) very large professional negligence/commercial claims. She is also qualified as a CEDR accredited mediator. Patricia relishes advocacy in all its forms, whether addressing the Supreme Court or persuading the decision-maker at a mediation, and believes that practising across a number of different fields is a positive advantage in keeping advocacy skills sharp and legal thinking flexible.

Patricia is accredited as a mediator.  She was appointed to the Bar Standards Board in 2010 and completed her term as Vice Chair of the Bar Standards Board in 2015.  She was appointed a Deputy High Court Judge in 2016.  She was appointed as a member of the Abu Dhabi Global Markets Appeal Panel in 2016 and as a member of an expert panel advising the Astana International Financial Centre on regulatory matters in 2019.  She accepts arbitration appointments.

Patricia has published extensively on topics connected with her niche areas of practice: including contributing to the relevant leading textbooks chapters on the subjects of internet banking and plastic money, on claims against investment managers and on regulation of legal services (see publications, below, for further details).

Areas of Expertise

  • Banking & finance
  • Commercial dispute resolution
  • Financial services
  • Fraud: civil
  • Local government
  • Offshore
  • Product liability
  • Professional discipline
  • Professional negligence
  • Public procurement
  • Telecommunications
  • Administrative & public law

Recent practice

Administrative & public law

Patricia has acted both for and against the SRA in cases before the SDT, and on appeal to the Divisional Court and Court of Appeal.  She has appeared in judicial reviews relating to interventions, handling of complaints or applications to the Compensation Fund, often including Human Rights issues.

Patricia also has experience acting for other regulators, such as the AADB, FSA, CLC and GMC, and is therefore well-placed to deal with the issues of principle that are common to different regulatory fields.

Some examples:

  • Patricia acted for the Council of Legal Conveyancers in defending a judicial review testing the scope of their powers to make grants from their compensation fund.
  • 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 [2006] EWHC 480 (Ch). 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.
  • 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 acted for the ICAEW in their intervention in the appeal before the Supreme Court as to whether legal professional privilege should extend to accountants giving legal advice as to tax, focussing in particular on the relationship between common law privilege and the LSA 2007 provisions for statutory privilege within ABSs: R (Prudential) v Special Commissioner of Income Tax [2013] UKSC 1.
  • Patricia acted for the Appellant in the Court of Appeal on the issue of whether laying an information before magistrates is a reserved activity under the LSA 2007 (permission for appeal to the Supreme Court granted): MPS Ltd v Crawford and another [2012] EWHC 2373 (Admin).
  • Patricia has appeared for claimants in judicial reviews challenging the decisions of local authorities in setting fees for residential care below cost or in failing to allow the private sector a reasonable return on capital: Bevan & Clarke LLP & Ors v Neath Port Talbot County Borough Council [2012] EWHC 236 (Admin) (2012) PLLR 036; R (Mavalon) v Pembrokeshire County Council [2011] EWHC 3371 (Admin).
  • Patricia has advised regulators on a number of issues relating to the application of the Legal Services Act 2007 and acted in an appeal from the SDT to the Court of Appeal directed at preventing lawyers from anticipating the implementation of rules permitting LDPs and ABSs under that Act. She has also advised potential new entrants to the ranks of approved regulators/licensing bodies under the LSA 2007, including major national firms, insurers and providers of automated online legal services.
  • She has advised a number of firms on the compatibility of their business structures with the current regime of legal services regulation. For example, Patricia has advised one of the largest national law firms on its application for an ABS licence for a joint venture with insurers and has advised a major firm of accountants as to the lawfulness, and compatibility with the current regulatory regimes of the SRA and BSB, of arrangements under which employed barristers and solicitors provide tax advice and litigation support to clients of the firm on a conditional fee basis and on ways those arrangements could be restructured as an alternative business structure under the LSA 2007 regime, once fully in effect.
  • She has advised on the interpretation of the provisions in the LSA 2007 relating to privilege within an ABS and, more generally, on the impact of the LSA 2007 on the availability of privilege for authorised persons who are neither solicitors nor barristers.

For work relating to professional discipline see the next section.

 

Professional discipline

Legal Services:

Patricia regularly advises firms on handling SRA investigations, on their reporting obligations, or other regulatory issues, such as management of conflicts or confidentiality, or the professional obligations of the firm in circumstances where their client is the subject of a statutory investigation.  She regularly advises a number of the magic circle firms and major national firms on compliance matters and is currently handling a number of high profile SRA investigations.  She has frequently been a speaker on such issues, for example at the regular conferences for General Counsel organised by Clyde & Co and Hinshaw and at conferences for COLPs and she has contributed to leading textbooks on regulation of legal services.

Some examples:

  • Patricia is defending disciplinary proceedings brought against Baker McKenzie and others relating to investigation of allegations of sexual misconduct against the then managing partner: SRA v Senior and others.  In the course of the last few years she has frequently advised firms on the handling of #MeToo allegations and related SRA investigations.
  • In SRA v Martyn Day and others, Patricia successfully defended Leigh Day and three individual solicitors in the longest hearing so far heard before the SDT, at the conclusion of which all 19 allegations were dismissed against all of her clients. In the course of the proceedings, the SRA was ordered to give disclosure of its exchanges with Government departments about the proceedings.  Patricia also successfully acted for Leigh Day in the appeal by the SRA to the Divisional Court.
  • At a separate costs hearing following judgment in SRA v Martyn Day and others, the SDT agreed with Patricia’s submission that they had jurisdiction to award costs against the SRA if the SRA had conducted itself unreasonably (a significantly lower threshold than that contended for by the SRA) but split 2 to 1 on whether their criticisms of the SRA in the substantive judgment were sufficient to amount to unreasonableness.
  • Patricia has advised the Law Society on the standard of proof in disciplinary proceedings before the SDT and intervened on behalf of the Law Society against the SRA in a test case on the point: Richards v The Law Society [2009] EWHC 2087 (Admin) (which was decided on other grounds).
  • Patricia has acted for the SRA in a number of complex, lengthy and high profile disciplinary cases testing points of principle, such as when a solicitor is obliged to stop acting for a client because the client’s business might be fraudulent or when referral fee arrangements put solicitors in breach of their duties to clients: for example, decisions of the SDT in The Law Society v Pitts TuckerThe Law Society v SheikhThe Law Society v Tilbray.
  • High profile regulatory investigations on which Patricia has advised include matters arising out of the phone-hacking scandal, the Al-Sweady inquiry and a number of commercial trials in which widely reported criticisms have been made by the Judge of the conduct of the firm or partner involved.
  • She has contributed chapters on the new regulatory regime and on the Legal Services Board to the Guide to the Legal Services Act 2007 (eds. Miller & Thorne, Butterworths Lexis-Nexis, 2009) and to Cordery on Legal services (Lexis-Nexis, Looseleaf).
  • In December 2015 Patricia completed a 6 year term on the Board of the Bar Standards Board, the regulator of barristers in England & Wales, for the last three years as Vice Chair of that Board, and in that capacity she was responsible for comprehensive reforms of the BSB’s regulatory regime. She therefore has experience of viewing regulatory issues from both sides, that of the regulator and that of the regulated.

Auditing, Accountancy and Financial Services:

Patricia has acted for the FRC on a number of public interest investigations into breaches of accounting and audit standards, relating to high profile collapses of financial services institutions in 2008 (the Presbyterian Mutual Society, in Northern Ireland, which was taking deposits without authorisation; Cattles, a sub-prime lender, whose accounts made insufficient provision for impairment of its book of loans).  She has also advised firms and individuals on handling an FRC investigation or on aspects of compliance with the FRC’s regime, such as conflicts or auditor’s independence.

Patricia has advised a major Stock Exchange on their disciplinary rules and procedures.

Patricia has considerable 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: for details of this work, 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 FCA decisions.

Other professional disciplinary experience:

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 serious professional misconduct (in particular, in the Ledward case itself, Bijl (reported in Privy Council: [2001] UKPC 42), and in various other cases involving allegations ranging from surgical incompetence to drug abuse).

 

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 (5th edition). For example, Patricia wrote an article on the application of section 75 of the Consumer Credit Act 1974 to credit card transactions over the internet in 1999, anticipating by 8 years the answer eventually given by the House of Lords in OFT v Lloyds TSB on that very issue.

Financial services advisory work:

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.  Some of this work has been done instructed directly by the legal department of the company concerned.  This has included:

  • Advising on the application of PSRII to various Fintech schemes.
  • Advising on a complaint to the Payment Services Regulator about alleged breaches of the Payment Services Regulations 2017.
  • Advising on the regulatory obligations of SIPP operators and the extent to which they may be exposed to civil liability to investors for allowing unsuitable investments to be made through the SIPP.
  • Advising on whether property based investment schemes come within the definition of unregulated collective investment schemes.
  • Advising on the interpretation of “contracts of annuity” in the RAO.
  • Advising on the interpretation of the Payment Services Regulations in relation to the requirements for segregation of funds.
  • Advising the promoter of an unregulated collective investment scheme as to the scope of deposit-taking activities.
  • Advising a provider of “pay day” loans on the application of the rules of the Cheque Guarantee Scheme to post-dated cheques taken in repayment.
  • 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 and financial services litigation:

Patricia has extensive experience of dealing with claims against financial services firms relating to investment advice and fund management services: see under “Professional Negligence” for this work.  Her litigation practice in the field of banking & finance has also included:

  • Acting in a matter involving claims (in more than one jurisdiction) arising out of the collapse of Stanford International Bank in Antigua, following the discovery of a massive fraud perpetrated on investors by its owner, Sir Allen Stanford: Stanford International Bank v HSBC Bank PLC.
  • Defending claims against HSBC arising out of a fraud perpetrated on BMW by an employee: BMW Hams Hall Motoren GMBH v HSBC UK Bank PLC.
  • Defending claims against an investment bank and its investment management subsidiary that negligent advice was given in respect of hedging the interest rate risks in a highly leveraged private equity investment in property: Arena Plaza jersey Limited Partnership v Lanebridge Investment Management Limited and N M Rothschild & Sons.
  • Acting for Ulster Bank in defending misselling claims and allegations of breach of fiduciary duty relating to an investment in Canary Wharf, raising issues under Irish law and Irish financial services legislation: Killybegs Seafood and Ors v Ulster Bank; Brendan McEneaney & Ors v Ulster Bank.
  • Advising funds on potential claims in misrepresentation arising out of the acquisition of HBoS by Lloyds.
  • Acting for an Italian local authority in three lead cases relating to the legality and enforceability of interest rate swaps and associated claims for damages and/or restitution, including acting in challenges to the jurisdiction and subsequently defending the substantive proceedings: UBS v Comune di Firenze; MLIB v Comune di Firenze; Dexia v Comune di Firenze (Settled shortly before trial)
  • Acting for a number of the major banks in defending cases relating to the misselling of interest rate swaps, for example in Strutt & Parker v Barclays (settled).
  • Acting for the lead defendant IFA in a multi-million pound claim brought by the Compensation Scheme in respect of investments involving Keydata: Financial Services Compensation Scheme v Independent Financial Advisers (settled).
  • Acting for the defendant directors and administrator of the Guernsey Cell companies in defending substantial litigation in Guernsey arising out of the collapse of Arch Cru: SPL Guernsey ICC Limited and others v Bordeaux Services (Guernsey) Limited.
  • Acting for a bank’s private wealth division in defending a potential class action by investors for alleged misselling of an AIG related fund (the EVRF), which was subject to a run, forcing closure in late 2008 (settled).
  • Advising a solicitor on a dispute as to enforceability of a loan for partnership equity, following the collapse of Halliwells.
  • A dispute between merchant banks over an option for gold bullion under an ISDA Master Agreement, raising issues of mistake and rectification.
  • 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 Michael Brindle QC) for a major clearing bank in an LCIA arbitration over defects in processing systems for credit and debit card transactions.
  • 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 (with Michael Lerego QC) in a long running guarantee dispute relating to the application of the rule on Holmes v Brunskill.
  • 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).

 

Commercial dispute resolution

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:

  • Defending claims brought by the Danish tax authorities against multiple defendants to recover very substantial sums paid out in refunds of Withholding tax, on the grounds of fraudulent misrepresentation, dishonest assistance, unconscionable receipt or unjust enrichment.  Issues include whether Danish or English law governs the alleged torts and whether the underlying Cum-ex trading amounted to a fraudulent scheme: SKAT v Pryan Shah and Others.  The matter is listed for a four day CMC in early 2020.
  • Steven Acheson & Ors v Sir Robert McAlpine & Ors, a massive juggernaut of a class action brought against most of the major construction companies in the UK by workers who alleged that a trade association functioned as a means of blacklisting workers. Patricia represented Cleveland Bridge UK in defending claims raising complex legal issues relating to vicarious liability for the actions of a trade association, data protection, defamation and human rights (one of The Lawyer’s top 20 cases for 2016, now settled).
  • Advising on complex financial service regulatory issues arising in litigation over a failed tax shelter scheme relating to film finance (settled).
  • Acting for a major telecommunication network in pursuing claims against two other networks for sums overpaid under interconnection agreements (settled).
  • Acting as an expert on English law in commercial litigation overseas involving claims in excess of €200m against directors and shareholders (both individual and corporate) for alleged misrepresentations inducing a syndicated loan. Issues include champerty, application of Lord Tenterden’s Act, joint tortfeasorship, personal liability of directors for torts, attribution of knowledge, and vicarious liability (settled shortly before hearing of appeal).
  • 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 trading carbon credits (settled before conclusion of trial).
  • A minority shareholder dispute arising from the collapse of an equity derivatives business, involving allegations of breaches of FSMA and breaches of director’s duties. (A particularly good example of Patricia’s skills and approach:  the case required familiarity with derivatives broking and knowledge of the law across an unusually broad span, including employment law, company law, joint ventures, and financial services regulation. When Patricia was brought in the case was scheduled for a 4 week trial in a year’s time, involving experts in at least two different fields.  On her advice, the radical step was taken of adding a counterclaim and applying for summary judgment on a part of the case involving allegations of dishonest breaches of FSMA principles.  Faced with that, the other side started settlement negotiations, which Patricia handled, and the matter was satisfactorily resolved, resulting in a considerable cost saving for her client.)
  • 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 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.

 

Fraud: civil

  • Defending claims relating to an alleged fraudulent scheme to make claims for Withholding tax from the Danish tax authorities: SKAT v Priyan Shah and others.
  • Acting for the claimant in a novel case seeking damages for deceit on grounds of paternity fraud. The case settled after Patricia amended to raise an alternative claim for restitution based on shared mistake as to paternity.
  • Advising a school on civil recovery of funds paid out to key staff unlawfully and in breach of fiduciary duty over a ten year period. There are parallel criminal and disciplinary proceedings.
  • 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.

 

Insurance

Patricia’s work includes:

  • Advising insurers on forming alternative business structures with lawyers, for delivery of legal services;
  • Advising on coverage issues and aggregation, in particular where this arises in the context of commercial litigation and professional negligence claims.
  • Recent cases include acting for AIG in: Ageas (UK) Limited v (1) Kwik-Fit (GB) Ltd (2) AIG Europe Ltd [2014] (authority on use of hindsight in measuring damages).

 

Mediation and other forms of ADR

A significant proportion of Patricia’s practice over the years has involved acting as advocate in the mediation of very large commercial/professional negligence disputes, often before any writ has been issued, and conducting pre-action protocol exchanges and negotiations. Patricia has accumulated very extensive experience, which relatively few members of the Bar could match, in the effective use of advocacy in the mediation of heavy and complex claims, many of them valued well in excess of £100m.  At the invitation of the Bar Council, she appeared on a panel with Michel Kallipetis QC and Philip Naughton QC, teaching advanced mediation advocacy to members of the Bar.

Her experience also includes conducting settlement meetings in heavy cases, without a mediator.  For example, she settled a $300m claim against an investment bank at a one day meeting of legal teams and clients, following detailed pre-action protocol exchanges.

Careful analysis and preparation is required for an effective mediation of technically complex/high value cases.  This frequently involves the preparation of documents that combine the functions of pleadings, witness statements, expert evidence and opening submissions, requiring highly effective drafting and a cogent analysis of the key factual and legal issues.  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.

Typically, this work includes preparing any pre-action protocol exchanges, drafting the case summary (in liaison with experts, where appropriate), analysing and discussing with the team the strengths and weakness of the case and possible negotiated outcomes, making the opening statement at the mediation and preparing speaking notes for senior management, and leading the strategy of the team through to conclusion. Some of this work has been done instructed directly by the legal department of the company concerned.

Patricia is also a CEDR accredited mediator and has assisted a number of a number of the most prominent mediators in mediating commercial disputes.

Privilege

Patricia frequently advises on privilege issues, in particular where these present in the context of regulatory or other investigations.  For example she recently advised a firm on complex privilege issues arising in the context of an investigation under s447 Companies Act 1985, including as to the application of privilege to multiparty email communications between co-investors and their respective legal advisers.

Patricia acted for the ICAEW in their intervention in the appeal before the Supreme Court in R (Prudential) v Special Commissioner of Income Tax [2013] UKSC 1.

Professional negligence

Professional negligence: Accountancy, Auditors, Investment Management, Banking and Financial services

Patricia frequently acts and advises in relation to professional negligence claims involving fund managers, banks, accountants, auditors, financial advisers, and other providers of financial services.

In particular, Patricia has extensive experience of disputes over fund management.  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.  Over the ensuing years Patricia has continued to build on this specialist experience.  In one year alone she acted in relation to five such matters, each valued between tens and hundreds of millions of dollars, all of which were resolved without proceedings being issued.  She has contributed a chapter on Liability of Fund Managers in Professional Negligence and Liability (ed. Simpson) which was in press at the time the Madoff scandal broke. She has written and advised on the subject of Madoff-related claims against banks and investment advisers.

Other examples include:

  • Defending claims against HSBC relating to alleged negligence in not identifying a fraud on its correspondent banking customer, Stanford International Bank, by its owner, Sir Allen Stanford: Stanford International Bank v HSBC Bank PLC.
  • Defending claims against HSBC relating to whether a fraud perpetrated on BMW by an employee should have been prevented by anti-money laundering checks on the employee’s account with HSBC: BMW Hams Hall Motoren GMBH v HSBC UK Bank PLC.
  • Defending claims against an investment bank and its investment management subsidiary that negligent advice was given in respect of hedging the interest rate risks in a highly leveraged private equity investment in property: Arena Plaza Jersey Limited Partnership v Lanebridge Investment Management Limited and N M Rothschild & Sons. (Action discontinued shortly before a security for costs application.)
  • Acting for an investment bank in defending a $300m claim relating to an advisory portfolio which was invested in emerging markets on a leveraged basis and suffered a total “wipeout” in late 2008. (Settled.)
  • Acting for investment managers in successfully defending a $30m claim for alleged misselling of leveraged structured notes which suffered losses when margin calls in late 2008 were not met: Al Sulaiman v Credit Suisse Securities (Europe) Limited and Plurimi Capital LLP [2013] EWHC 400 (Comm).
  • Acting both for and against banks in claims relating to misselling of swaps, including acting for an Italian local authority in three lead cases relating to the legality and enforceability of interest rate swaps and associated claims for damages and/or restitution, including acting in challenges to the jurisdiction and subsequently defending the substantive proceedings: UBS v Comune di Firenze; MLIB v Comune di Firenze; Dexia v Comune di Firenze (Settled shortly before trial). (See Banking section, above, for other examples.)
  • Acting for the wealth management division of a major bank in defending misselling claims relating to investments sold as cash equivalents. (Ongoing.)
  • Acting for IFA in defending misselling claims relating to Keydata bonds invested in life insurance policies. (Settled.)
  • Acting for Guernsey administrator of cell companies for Arch Cru closed-ended funds in defending allegations of negligence in discharging functions as sponsor, administrator and company secretary and allegations of negligence and breach of fiduciary duty against directors. (Ongoing.)
  • Acting for a bank in defending a claim for allegedly negligent financial modelling of the costs of a major PFI project in Northern Ireland. (Settled).
  • Advising on a claim against an insurance broker for inadequate advice on scope of income replacement cover for company director.
  • Defending a claim against accountants for allegedly negligent valuation of goodwill (settled).
  • Defending a claim relating to alleged failures by auditors to identify the true extent of a farming cooperative’s exposure to liability on commodity futures and options (settled).
  • 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).

Professional negligence: Legal Services

Patricia has extensive experience of professional negligence claims against legal advisers.

Recent and current examples include:

  • Successfully obtaining summary judgment on behalf of the defendant law firm in respect of a claim that statements made in correspondence on behalf of a client constituted a representation by the firm: Bronze Monkey LLC and another v Simmons & Simmons LLP and another [2017] EWHC 3097 (Comm)
  • Acting for an international law firm in defending allegations of professional negligence brought by a private equity fund against its Paris office in respect of insolvency advice under French law: Fortelus Special Situations Master Fund v Fried Frank. (In The Lawyer’s list of top 20 cases for 2016.)
  • Acting for an international law firm in defending allegations of negligence in transactional advice relating to the acquisition of a national network of petrol stations. (Claim abandoned by Claimant following a successful application to strike out parts of the claim as an abuse of process: Ridgewood Properties Group Ltd & Anor v Kilpatrick Stockton LLP & Ors [2014] EWHC 2502 (Ch).)
  • Advising an international law firm as to its pre-action protocol response, including advising on jurisdiction (there were jurisdiction issues arising from the way the law firm was structured internationally) and proper law (the claim relates to advice on foreign law given by an overseas office).
  • Advising on a potential claim for 210 million Euros against legal advisers who had acted for the lenders in relation to a syndicated loan. The borrower was declared insolvent within weeks of the funds being drawn down.  The potential claimants were banks who had purchased the debt on the distressed debt market and had taken assignments of ancillary claims.
  • Acting for the BMIF in defending a number of claims brought against barristers. With Ali Malek QC, she successfully defended a leading commercial silk against the largest such claim that the BMIF had until then faced (the claimant submitted to dismissal of his case and an order for indemnity costs in the 5th week of the trial).

Professional negligence: other

  • Acting for an architect on a successful appeal to the Court of Appeal on the construction and effect of a net contribution clause, which is now the lead case on such clauses: West and another v Ian Finlay & Associates (a firm) [2014] EWCA Civ 316.
  • Acting for Savills in defending professional negligence claims relating to estate agency services and property management relating to the acquisition and development of a number of shopping malls in Central London (settled).
  • Patricia’s chapter on the liability of expert witnesses (first published in 2006 in Professional Negligence and Liability) put forward an argument for removal of immunity from expert witnesses, which was accepted by the Supreme Court in Jones v Kaney [2011] UKSC 13.

Professional negligence: use of ADR

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: 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.

Recommendations

Patricia has regularly had cases listed in the The Lawyer’s Top 20 cases of the year and was named by The Lawyer as one of the “Hot 100” for 2011. This prestigious list recognises a group of lawyers who have been at the top of their games and who have “consistently demonstrated nimbleness and innovation”.  The Lawyer said of Patricia that her broad based practice means she is well-placed to deal with major litigation spilling out of the recession, from professional negligence to regulatory to commercial disputes.

Patricia is recommended by Chambers & Partners as a leading silk in 5 practice areas: Banking & Finance, Commercial Dispute Resolution, Financial Services, Professional Discipline and Professional Negligence; and by the Legal 500 in 4 practice areas: Administrative & Public, Banking & Finance, Professional Discipline & Regulatory and Professional Negligence. Patricia is also recommended by Legal Experts in the field of Banking.

Comments made about her in the Directories have included:

“Immediately impressive, she has a very easy manner and explains things in a concise and direct way.” “She is extremely bright and completely on top of the legal analysis.” (Chambers and partners, 2019)

“An intellectual powerhouse who combines forensic attention to detail with an unrivalled ability to distil huge quantities of information and complex law into comprehensible and relatable nuggets, whether for clients or for judges.” “She has a razor-sharp intellect and an ability to think on her feet that is second to none. She is meticulous in her preparation and always knows the documents better than the other side.” “Incredibly practical and adept at managing cases, and thinks about issues holistically.” (Chambers and partners, 2019)

“A very high-energy lawyer who will absolutely get stuck into the detail of a case.” (Chambers and partners, 2019)

“Her strengths are her masses of intellect, the way she applies that intellect and her energy.” “Great for detail and really attentive for the finer points.” “Great to work with on matters that have some regulatory aspect to them; whether you’re dealing with some sort of investigation or enforcement action for one of the regulators, she’s just the job as she’s very experienced.” “Very experienced and great to work with, particularly on matters that have a regulatory aspect to them.” “She’s extremely thorough and impressive in front of clients.””Superbly bright, hard-working, quick and good with clients.” (Chambers, 2018)

“Has a rare gift for clear-speaking rather than equivocating.” “Highly recommended.” “Combines a first-rate strategic understanding with super-impressive absorption of the detail.” “She represents elite professional services firms.” “Excellent.” (Legal 500, 2017)

She is meticulous, incredibly bright and really gets into the details of cases”” Wonderful to work with – she is calm, measured and makes herself available” “She has masses of intellect, application and energy” “Incredibly bright and intellectually rigorous, she is good at getting to the point and providing effective analysis” “She’s tenacious, quick-witted and on top of the detail” “a superb advocate, she rolls her selves up and gets involved” “Extremely thorough and impressive in front of clients” “Fantastic, a very strong advocate who is very strong on her feet” (Chambers, 2017)

“She is down to earth and solicitor-friendly, and gains a superb grasp of case essentials very quickly.” “She is brilliant; she is incredibly proactive and understands the strategy and commercial thinking behind it.”  “A force of nature. She has a very quick mind and an electric personality, and is great fun to work with.” “She can focus down to the key points very quickly and find out what is really important in a case and what isn’t.” “She’s brilliant and incredibly proactive. She gets strategy and the commercial thinking behind it.” “Ferociously bright, combative and a pleasure to work with.”  “She has masses of intellect, application and energy.” (Chambers, 2016)

“A highly approachable and highly adaptable silk, those in the know go to her.”; “A skillset ideal for guiding clients through the trickiest of situations.”; “She has a very good command of the law and strategic oversight, which quickly gains clients’ confidence.” (Legal 500, 2016)

“Extremely good and effective. She shows great attention to detail and gets the job done.”,”A very persuasive advocate who has ferocious intelligence coupled with commercial astuteness and approachability”,”Extremely thorough and impressive in front of clients.”,”Knowledge just flows out of her.” “She a good advocate, who is clear, clever and a hard worker.”,”Incredibly intelligent, very detailed and absolutely first class for banking disputes.” , “A fount of knowledge when it comes to asset management, banking and regulation issues.” (Chambers, 2014) “The ‘outstanding’ Patricia Robertson QC is ‘tenacious, with great attention to detail and a robust style.’(Legal 500)

“measured approach, attention to detail and capacity for thinking around the issues”, “scarily clever”, “masses of intellect, application and energy”, “well known for her expertise in the handling of hedge fundrelated claims” (Chambers 2012); “first-rate” (Legal 500, 2012); “clear advice presented in ordinary language” “approachable, creative and a pleasure to work with” (Chambers, 2012);

“highly intellectually capable”  “known for her work on high-profile and high-value professional negligence cases” (Chambers, 2011); “unflappable demeanour”, “It’s amazing how cool she can be under immense pressure – nothing seems to faze her.” (Chambers 2010); ‘We tend to go to her when you need a silk that is really going to get stuck into the detail of a case.’ (Chambers, 2009); “…her complete and unquestionable commitment prove highly attractive to those who instruct her, while her ability to demonstrate the factual circumstances to a client is nothing short of excellent.” “…always prepared for anything.” (Chambers, 2008); “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)

Appointments, memberships, prizes

  • Deputy High Court Judge (QB) since 2016.
  • Member of the Advisory Panel on legal regulatory matters for the Astana International Financial Centre since 2019.
  • Member since 2016 of the Appeals Panel established by the Board of Directors of Abu Dhabi Global Market (ADGM) pursuant to section 227 of ADGM Financial Services & Markets Regulations 2015.
  • Vice Chair of Bar Standards Board 2013-2015
  • Member of Bar Standards Board 2010-2015
  • Former Chair of Standards Committee, Bar Standards Board
  • Master of the Bench, Inner Temple
  • Brackenbury Scholarship, Balliol College, Oxford

Other experience

CEDR accredited mediator

Frequently asked to speak at conferences on the Legal Services Act 2007 or on aspects of financial services regulation. Speaker at Informa’s prestigious annual Professional Negligence and Liability conference. Past speaking engagements have also 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 the impact of the CPR on costs awards, implications of the Human Rights Act for professional disciplinary procedures, and a round table with in-house lawyers on “Cautionary Tales for Investment Banks”.

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.

Publications

  • Chapters on Fund Managers and 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).
  • Chapters on the new regulatory regime under the Legal Services Act 2007 and on the Legal Services Board in The Guide to the LSA 2007 eds. Miller & Thorne, 2009 (Butterworths Lexis-Nexis).
  • Contributor to chapter on Professional Negligence in Bullen & Leake & Jacob’s Precedents of Pleadings, 16th edn (Sweet & Maxwell).
  • Blog post on confidentiality in arbitration: “Lifting the Veil”, March 2018, https://probertsonqc.wordpress.com/author/probertsonqc/
  • Article on Madoff investor claims: US proceedings and possible UK approaches (The In-House Lawyer, May 2009).
  • Article on Loss of chance in claims against fund managers (The In-House Lawyer, December 2008).
  • 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).

Languages

  • French
  • Italian

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