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26 November 2012

Professional Negligence Claims – A Brief Overview

Individuals and businesses frequently take advice from professionals such as solicitors, accountants, surveyors and financial advisors.  Most of the time that advice assists them in achieving their desired outcome, or places them in a more informed position to make key decisions.  Occasionally, however, there is a problem with the advice which has detrimental consequences for the client.  If you are faced with that scenario, what redress do you have?

Is it a case of professional negligence?

You may be entitled to bring a claim against the professional.  The fundamental hurdles which you would need to overcome in order to make out a case are set out below.

1. Duty of Care.  Firstly, you must establish that the professional owed you a duty of care.  This will usually be evidenced by the fact that you instructed the professional to act for you.  Alternatively, the duty may arise from the fact that the professional held himself or herself out to have a particular expertise, which you relied upon.

2. Breach of Duty of Care.  You must then be able to show that the professional has breached that duty of care by falling short of the standard to be expected of a reasonably competent professional in the same field.

3. Loss.  You must have suffered a loss.  This could take many forms, for example being unable to effect a family member’s wishes due to their Will being invalid, facing a tax liability you were unaware of, discovering that your new property has suffered from subsidence, or losing money on an investment.

4. Causation.  The loss you have suffered must have been caused by the professional’s breach of his/her duty of care.

Are there any other factors to consider?

It is important to remember that each case turns on its own facts.  The extent of any duty or breach of it will depend upon the scope of your instructions to the professional, and it can sometimes be difficult to separate out the losses which have been caused by a breach from losses which may have arisen in any event.  In cases where you have contributed to the loss by your actions or omissions, the amount of compensation to which you are entitled will be reduced.

What are the time limits?

There is a time limit within which you must start your claim against the professional.  In most cases this is six years from the date of the negligence, although there can be exceptions to this.

Are there any alternatives to court action?

Yes there are, although you should remember that these alternative routes will not stop the six year time limit from running. 

Most professional organisations will have a formal complaints procedure which may enable the matter to be resolved with them directly.  Another option is to contact the professional’s regulatory body (such as the Solicitors Regulation Authority) or any relevant ombudsman (for example the Financial Ombudsman Service).

If those avenues are not successful, you may wish to consider court action.  However, it is usually advisable to follow the Professional Negligence Pre-Action Protocol before commencing a claim.  This is a court recognised procedure which is designed to encourage the parties to exchange full information about the claim and any potential defence before commencing a claim, so that they can understand the issues which they will face if they embark upon litigation.

Other forms of dispute resolution, such as mediation, are also possibilities.  Sometimes your contract with the professional will specify the form of dispute resolution by which any disputes between you should be resolved.

Court proceedings

If it is necessary to pursue your claim through the courts, the proceedings will follow a timetable set down by the court.  You will most likely need to give witness evidence in support of your case, and it may be necessary to obtain expert witness evidence from an independent expert.

Funding of the case will be a factor which you will need to discuss with your solicitor.  It may be the case that you have insurance in place which will fund the litigation.

If you think you may have a claim against a professional or would like to discuss any of the issues outlined above, please contact us.