Professional Negligence: Alternative Dispute Resolution

Litigation is expensive, time-consuming and carries risks, particularly in relation to costs where a claim does not succeed.

It may be that you really want an apology, or to have a fault put right.  You may want a remedy that ensures that an error that has caused you loss will not happen again, or the problem may be adequately remedied by a reduction or waiver of fees.  In those cases, litigation is not going to be helpful or appropriate.

Anyone considering bringing a professional negligence claim should first consider whether there may be any alternative means of redress available that would allow them to avoid litigation altogether.

Making a direct complaint

All professionals have procedures in place for considering complaints about the services they provide.  Raising your complaint with the individual or organisation concerned gives you the opportunity to resolve it quickly and without the costs and risks of litigation. 

If raising a complaint direct with the professional does not result in a satisfactory resolution of the problem, there are other organisations that can help to resolve disputes.

Taking the complaint further

Legal Professionals

The Legal Ombudsman will consider complaints about poor service provided by ‘regulated service providers’ which means Solicitors, Chartered Legal Executives, Barristers, and other types of legal professional providing regulated services such as licenced conveyancers, patent attorneys, trademark attorneys, notaries, costs lawyers and other business providing legal services such as claims management companies.

The Legal Ombudsman will not consider allegations of negligence, but there is a considerable amount of overlap between negligence and poor service and a where the Legal Ombudsman makes a finding of poor service, it may support …

In terms of remedy, if the Legal Ombudsman finds that the service provider is at fault, he may require the complaint to be resolved

  • An apology
  • Returning documents
  • Rectifying a problem, at its own cost
  • The refund or reduction of legal fees
  • The payment of compensation (up to £50,000 though the average for such an award is under £250.00)

Accountants

There is no formal ombudsman scheme in place for accountants, however, under the Legal Services Act 2007, the Institute for Chartered Accountants England and Wales (‘ICAEW’) is licensed to authorise its members to undertake probate work.  Once they become an ‘authorised person’ for this purpose, and provided the complaint is about the provision of a legal service, then the Legal Ombudsman can consider complaints about poor service. 

Accountants may be registered with one of several professional bodies, but the ICAEW and the Association of Certified Chartered Accountants (‘ACCA’), are amongst the most popular.  You would need to check with the accountant concerned.  Whilst none of the professional organisations will investigate claims of negligence against its own members, they will consider and determine complaints about poor service.

Financial Advisers

The Financial Ombudsman assists a variety of individuals and other organisations to resolve a complaint about service, in a wide range of financial services (banking, insurance and other investments).  It has a wide range of powers available for resolution of disputes and is empowered to award compensation of up to £150,000 plus costs and interest.  The FO can recommend higher levels of compensation but has no power to enforce the recommendation.

Construction and Engineering Professionals

This category of professionals includes Architects, surveyors, quantity surveyors, building contracts and project managers, and each will have their own professional regulator or association.

Architects are regulated by the Architects Registration Board (‘ARB’).  It operates a Code of Conduct and can investigate complaints about professional conduct under its disciplinary powers; however, that process will not provide the complainant with a personal solution, so it cannot order an architect to fix a problem, nor pay compensation, so its use to individual complainants is limited.

The Royal Institute of Chartered Surveyors (‘RICS’) and the Institution of Civil Engineers (‘ICE’) have the power to consider service complaints.

Other professions are affiliated to their own professional organisations with varying powers to investigate complaints against their members.

ADR as an early alternative to litigation

Whilst there are various types of ADR available, the most useful at a pre-action stage.  All ADR is voluntary – no party to a dispute can be forced to mediate.  However, in an appropriate case and if the parties are agreeable to mediate at an early stage, it could offer

Mediation

This form of ADR uses an independent professional mediator, who assists the parties to come to their own resolution of the dispute. The procedure is confidential and cannot be referred Whilst a mediator can suggest solutions to the parties, they do so in private with each party concerned with the aim of bring the parties together to agree terms of settlement that then take effect as a contract between them.  Confidentiality can be waived and the outcome of the process, if it is unsuccessful in resolving the dispute, may be used to narrow the issues between the parties for any subsequent litigation.

Conciliation

This form of ADR is similar to mediation but a conciliator will take a more interventionist approach that will involve putting suggestions for resolution to the parties in an open forum.  As with mediation, no party can be forced to accept a proposal, but it can exert more pressure on the parties by forcing them to see the strengths and weaknesses of their own case and that of their opponent.  Settlement is ultimately determined by the parties but unlike

Arbitration

Arbitration is a semi-judicial, confidential process where an independent professional is asked to make a decision on the dispute that the parties agree to be bound by in advance.  It is a process more suited to commercial disputes particularly those where the parties may have to continue a working relationship with each other, but even so, it remains an option for the resolution of any form of dispute.

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