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How to become a clinical negligence QC

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Two Serjeants’ Inn barristers, who made it to the top via strikingly different routes, share their advice and reflections

Dr Simon Fox QC and Christopher Johnston QC

Serjeants’ Inn’s newest recruit, Dr Simon Fox QC, is of a similar vintage to one of the set’s ‘lifers’, Christopher Johnston QC, but the two clinical negligence silks made it to the top via very different routes.

Fox, who became the set’s 21st QC when he joined earlier this year, started his career as a doctor, working in the UK, New Zealand and Central Africa, including a spell treating casualties from the Mozambique civil war. But an interest in law harboured since childhood saw him switch careers. Having completed the Graduate Diploma in Law (GDL) in the early 90s while working part-time as locum, he developed a practice on the Northern and Western Circuits specialising in clinical negligence cases with difficult or complicated issues on breach and causation.

“Medicine was absolutely a fantastic grounding for what I now do but my vocation is very much for law. That’s why I’m so pleased the GDL route exists,” he says.

Johnston, on the other hand, went straight into law, despite having spent his teens obsessed by computer programming. “As a kid for a time my only real friend was my Acorn Atom computer with its cassette tape program storage system. The publication of my Formula 1 racing game and Morse code decoder software should have given me the hint that there was money to be made in this new-fangled computer world,” he recalls of his youth in Northern Ireland. But a simultaneous passion for drama drew the multi-talented youngster towards the bar. And having completed a law degree at Cambridge he joined Serjeants’ Inn fresh out of university. “Pupillage was my first proper job — and I’m still here,” he says.

Now at the top of their game, both men find themselves involved in some fascinating work.

Johnston — described by Chambers & Partners as “a super brain and a nice man too” and the UK Bar Awards Clinical Negligence Silk of the Year — was the lead QC acting for the claimant in XX v Whittington Hospital NHS Trust in the Court of Appeal and Supreme Court. This was a landmark clinical negligence case, pursued by a claimant who had been left infertile due to the Hospital Trust’s negligence.

Applications for pupillage at Serjeants' Inn close on Friday 7 February 2020

Johnston and fellow Serjeants’ Inn barrister Claire Watson successfully argued in the Court of Appeal, first, that the trial judge had been right to break new ground by awarding costs for UK “own egg” surrogacies, but the court was required to go further and, secondly, make an award for donor egg surrogacies as well and, thirdly, on the highly unusual facts of the case, permit an award covering “for profit” surrogacies within the well-regulated Californian system rather than in the UK.

“It’s the most interesting case I’ve ever been involved in,” reflects Johnston, which is quite a statement for a barrister who has been involved in numerous crucial cases over the course of his career.

The final appeal to the Supreme Court took place last month. There is added interest for law geeks in that the overturned first instance judgment relied on one of Supreme Court president Lady Hale’s decisions when she was sitting in the Court of Appeal. The appeal was her final case before she retires this month.

Fox’s cases, often involving young children who have been left brain damaged due to medical negligence, rarely reach the public domain. He recently concluded a cerebral palsy claim in a lump sum equivalent value of £25 million — believed to be one of the highest ever clinical negligence awards made in the UK. He has particular authority on the Bolam test (used to assess medical negligence) having lectured extensively on the topic. Fox believes that the test is being changed by case law in subtle, but profound, ways that shouldn’t be overlooked. Described by the directories as “able to see points other barristers couldn’t and offer a new perspective”, Fox also sits as an assistant coroner.

Fox and Johnston have got to know each other over the last few months partly thanks to Serjeants’ Inn’s hot-desking arrangements. When he joined the set in April, Fox made a point of basing himself in this communal space so he could meet members of the set. “With so many leading barristers in their field here I thought it might be quite an intellectual and dry place but it’s actually one of the friendliest work environments I have known,” he comments, adding that it “feels small” in comparison to some of the large sets where he has worked.

In contrast, Johnston notes that having gone from around 20 barristers to over 70 in his three decades at Serjeants’ Inn, “it feels really big now!” But, he continues, “I still feel like I can walk into anybody’s room and some of my best friends are here”. A “first-rate” management set up, co-led by joint chief executives Catherine Calder and Martin Dyke with senior clerk Lee Johnson, has managed the growth, and associated evolution of the set’s brand, “brilliantly”.

Looking ahead to the future of clinical negligence work, both Fox and Johnston expect mediation to become an increasingly central feature of practice. “The NHS is pushing for more of it, clients tend to like it as it can quicken up the legal process, it avoids the stress of a trial and gets them a result, so I expect lawyers to do more of it,” says Johnston.

Fox, who is a trained mediator, points out that the skills required during a mediation can be quite different to what is needed in court. “There is more emphasis on the soft skills not associated with hard-nosed lawyering,” he says.

Students hoping to pursue a career in this area would be well advised to consider this trend for alternative dispute resolution, both men advise. Do they have any other advice for future lawyers hoping to follow in their footsteps?

“You spend so much of your life working that you should do something you enjoy. For me the human interest element is everything,” says Johnston.

“What we do is both very interesting and reasonably well paid, so we are very lucky. I look forward to opening every new case,” adds Fox.

Applications for pupillage at Serjeants' Inn close on Friday 7 February 2020

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