Professional negligence occurs where a professional fails to perform their duties to the required standard. Claims can be brought in contract, tort, or for breach of a fiduciary or statutory duty. In short if you have received “bad advice”, it may be you have suffered professional negligence and should explore further.
Who can I claim against?
A professional is someone who presents themselves as having expertise in a particular discipline. The list of potential professionals is thus extensive but typically may cover solicitors, barristers, accountants,financial advisors, surveyors, architects, brokers or engineers.
Common examples of professional negligence
If you are unsure whether you may have an issue please speak to us. By way of example negligence might occur with:
Solicitors and barristers
This could be negligence advice in relation to wills or estates that has led to losses; flawed tax and trust advice that may have led to HMRC issues or unexpected losses; or say missed elements in employment or personal injury claims that has impacted on the expected levels of recovery.
Accountants and financial advisors
An accountant may have negligent prepared accounts leading to losses in a business, say with an impact on tax affairs or where business commitments are made (or not made) not appreciating the accurate financial picture. Similarly financial advisors may recommend a product that does not fit with your demands or provide inaccurate advice leading to losses.
Surveyors and architects
If a surveyor provides an inaccurate valuation or an architect produces a flawed design losses may result from this. Issues like diminution in value of a property or loss of chance may need to be considered.
Issues with inadequate or voided insurance policies can stem from issues with brokers not advising properly on the relevant level of cover, scope of options or indeed not following instructions as to the scope of cover desired or updating insurers during the lifetime of cover.
Construction and engineering professionals
Issues can arise with construction and engineering professionals for instance in relation to time of delivery or quality. A specific protocol should be followed with pre-action meetings expected before formal commencement of a claim.
Do I have a claim?
Bespoke analysis would be needed as to your specific case but broadly it may be worth your further exploration if:
- A duty exists – this would follow if you have engaged a professional to carry out work for you
- A breach of that duty has occurred
- You have suffered loss due to that breach.
Claims in contract
The contract you have with your professional dictates the basis of their liability and the duties they will owe.
The contract will likely be set out by a letter of engagement and terms of business. This will help define the scope of duty.
Terms may also be implied into a contract, for instance for a previous course of dealing or by statute. For example under the Supply of Goods and Services Act 1982 it will be implied that the service will be carried out with reasonable care and skill. Further, service will be carried out in reasonable time and at a reasonable charge.
The scope of any duty may also depend on how experienced you are in relation to the matters hand. If it is a unique and new situation, wider explanation and duties can be expected.
Claims in tort
A claim in tort may also exist against the professional. This is shown via three limbs: duty of care, breach of that duty and causation.
A professional generally owes a duty of care if they have committed to act or advise on a matter. Broadly, breach of that duty will follow if they have not advised/acted to the level of a reasonably competent professional dealing with the particular matters at hand. In relation to causation it would need to be shown that but for the professional’s negligence, you would not have suffered loss and that the loss was not too remote so as to excuse the breach.
As a general rule non-clients will not have a claim in negligence against professionals but we are happy to discuss individual queries or specific enquiries.
Establishing a claim
Where a duty is owed it must then be established that an error has been made which no reasonable member of the profession, in the circumstances, would have made.
Expert evidence may be required to support such a claim. This is less common however against solicitors and barristers than say architects however. In asserting that the professional’s conduct has not been acceptable an expert (a fellow professional in the field) would for instance give evidence to assert the correct advice/conduct and whether the defendant had made an error that no practitioner would have made in the equivalent circumstances, not just that an unusual course had been taken.
The standard of care in a contractual claim is that of reasonable care and skill. In tort the standard is an objective test of what a reasonable man might expect.
Ultimately each case will turn and be interpreted on its own facts.
Process for a claim
It is important to seek specialist advice if you believe mistakes have been made in professional advice you have received. Not least this is because there is a time limit on claims being brought to court. Usually a claim must be issued within 6 years of the cause of the action, though this can vary so please do speak to us on your individual circumstances.
Our experienced teams can guide you through the relevant channels in line with the expected court protocols. This can involve correspondence with the professional to establish the claim and provide the opportunity to resolve matters outside of court via early offers or dispute resolution procedures such as mediation, providing the opportunity for prompt and cost effective resolution, right the way through to a formal court claim and trial.
We are also happy to assist you in relation to insurance arrangement either with existing cover that may help in progressing a claim or advising on After the Event cover that may assist in risk management of a claim to be progressed.
Is there a time limit to claim?
Usually there is a time limit of six years from the date of the negligence to bring a claim, though this can vary according to the circumstances.
Do I have to go to Court?
Usually there will be an exchange of “pre-action” correspondence to attempt to resolve matters without the need to issue a claim at Court. Dispute resolution methods like mediation or offers to settle can also be explored. If a Court claim was needed and matters went to trial then it is likely you would then need to attend as a witness in the case.
How much does a professional negligence claim cost?
The size and complexity of the matter will dictate how much it is likely to cost. There is the potential opportunity to recover some costs on a successful outcome, and costs can also be a reason for both parties to explore early settlement. We are happy to discuss individual funding arrangements and concerns. It is also important to check existing insurance such as household policies to see if there is any legal expenses cover to utilise.