Gary Meggitt on The Changing Landscape of Professional Liabilities (New book chapter)

"The Changing Landscape of Professional Liabilities"
Gary Meggitt
in Insurability of Emerging Risks: Law, Theory and Practice, edited by Baris Soyer and Özlem Gürses (Bloomsbury Publishing, January 2025), Chapter 11, pp. 233 - 254
Published in January 2025

Introduction: Once upon a time, it was relatively easy to identify who was ‘a professional’ . As the authors of Jackson & Powell on Professional Liability put it, ‘the occupations which are regarded as professions have four characteristics’ . These are the ‘mental’ rather than ‘manual’ nature of their work; the ‘moral’ or ‘societal’ aspects of their role; the existence of collective organisations to which they belong and which oversee their activities; and the elevated social status which they enjoy.

Those characteristics are passing into history. Professionals’ work may still be mental rather than manual, but the quality of their work is no longer ‘judged’ by their professional peers but by the managers of the corporate entities in which they are now often employed. Moreover, emerging technology, including artificial intelligence (AI), presents an even greater challenge. Can a ‘bot’ be a barrister ? If not, why not ? If an architect uses AI to design a building and that design is defective, who is to blame ? The architect or the AI or the AI’s developer ? If the design is superlative, who takes the credit ?

The demise of traditional partnerships and the ‘commercialization’ of their practices has exacerbated the tensions between professionals’ disparate ethical duties to their colleagues, clients and the wider community. The supervisory role of collective organisations such as national law societies has been diluted by the growth of statutory regulatory bodies and, in the view of some, sidestepped by multinational professional service firms. Finally, professionals’ supposed social status has been all but eradicated by the public’s disinclination to defer to their ‘betters’. This is reflected, most importantly for professional indemnity (PI) insurers, in the growth of claims against professionals for both their own alleged misconduct and in ‘facilitating’ the misconduct of others.

This chapter addresses the changing nature of the work, obligations and regulation of professionals by reference to the ‘four characteristics’ in Jackson & Powell. It considers the possible risks that may be brought about by these changes. It discusses the need for policyholders and insurers to familiarise themselves with these risks and to address them when it comes to their practices (in the case of the former) and underwriting, claims management possible development of alternative forms of cover (in the latter’s case). Although this chapter focuses on legal professionals (so as to keep it to a manageable length) it touches upon the experiences of other professions where appropriate. Finally, although it concentrates on developments in the UK, it does not neglect those in other significant jurisdictions.