Professional negligence describes a situation where someone who owes you a duty of skill and care fails to perform in accordance with that duty, and you suffer loss as a result. The duty may be owed by any professional, but claims are most commonly made against solicitors, accountants, architects, valuers and surveyors. Claims against members of the medical and related professions (e.g. dentists) are usually described as clinical negligence, and are the subject of a separate note.
Do you have a claim?
In order to establish a claim, you need to prove
- a breach
- of a duty of care
- causing loss
Each of these elements may be difficult to establish. For example, you may feel that the surveyor who valued a property before you bought it, over valued the property, and as a result you paid too much. To you this is a breach, but there may well be a range of acceptable values for the property, within which your surveyor's valuation falls. Expert evidence on value will be needed to prove your case and eventually a judge would decide who was right.
The professional may dispute that he owed you a duty; for example, you accompany a friend to see his accountant, and he gives incorrect advice, which you act on. Did the professional owe you a duty of care as well as your friend, to ensure that his advice was accurate?
And finally, there may be an argument about whether the act about which you complain caused the loss which you say you have suffered. For example, a solicitor may have failed to advise you that a footpath crossed your property, but he may argue that you would have bought the property in any event.
What should you do to pursue a claim?
If you feel that you have a claim against a professional, it is likely that you will need legal advice in order to pursue it. If the claim is of low value, you may try writing to the professional firm explaining the situation and asking for compensation. If your claim involves professional misconduct (i.e. a breach of professional rules, such as dishonesty), or poor service (such as delay in replying to your letters) as well as negligence, then you can involve the appropriate professional body, who may be able to offer compensation as well as applying disciplinary measures.
If this approach is unsuccessful, but you still feel that you have a claim, then you should seek legal advice. Unfortunately, if you are employed, it is unlikely that you be entitled to legal aid to help you fund your claim. If your solicitor thinks that you have a strong claim, then you may be advised to enter into a conditional fee agreement under which you will only pay legal costs if you win your case. In other cases, you will need to fund the legal claim yourself, and the costs may be substantial.
There are strict time limits (known as limitation periods) within which a claim for professional negligence can be brought, so if you suspect you have a claim, you should seek advice as soon as possible.
What happens next?
Your solicitor will want a detailed statement from you of the circumstances surrounding your claim. Make sure you take with you any paperwork (such as letters, diaries or invoices) which may help you to remember exactly what happened.
At some stage it is likely that another professional will need to be instructed to act as an expert to advise whether, in their opinion, the advice which you received fell below that which might be expected from a reasonably competent professional. Without evidence of this kind supporting your claim, it is unlikely that you will be able to succeed in your claim.
Your solicitor will then write a detailed letter setting out your claim, which will probably be referred to the professional indemnity insurers acting for the professional against whom you are making a claim. Your claim may be accepted and an offer of settlement made at this stage, but more commonly, the claim is likely to be disputed and you must decide whether to go ahead with a court action.
A court action will involve the exchange of written statements of the case, the disclosure of any documentary evidence relevant to the case, and of your expert witness reports. The vast majority of court actions never reach a trial, either because the claim is discontinued, or because the parties reach a settlement. A settlement may be negotiated by the solicitors directly, or by involving a third party in a process called mediation.
How we can help
Professional negligence actions are complicated and may be expensive so it is important that you receive expert advice from the beginning. Please contact our experienced litigation team if you feel you have a claim, or if someone has indicated that they will be making a claim against you.
For information of users: This material is published for the information of clients. It provides only an overview of the regulations in force at the date of publication, and no action should be taken without consulting the detailed legislation or seeking professional advice. Therefore no responsibility for loss occasioned by any person acting or refraining from action as a result of the material can be accepted by the authors or the firm.