Professional Negligence FAQs

Please note that the questions and answers on this page are for general information only and must not be used as a substitute for legal advice. You should always take legal advice which is tailored to your specific circumstances.

Against which professionals can a negligence claim be brought?

A professional negligence claim can be brought against any professional (individuals and companies) who owed a claimant a duty of care, and have not performed their responsibilities to the required standard.

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What is required in order for a claimant to bring a successful professional negligence claim?

Duty of Care

As a starting point, a claimant must prove that they were owed a duty of care by the professional involved. The duty is usually evidenced by the written retainer/engagement letter between the professional and client but in the absence of a written retainer it may be implied by the parties’ conduct.

Breach of Duty

The claimant must prove that the professional breached their duty of care, by demonstrating that the services provided fell below the standards of a reasonably competent professional specialising in their area of expertise.

Causation/Loss

Once the claimant has established that there was a breach of duty, it must also prove that the loss suffered was caused by the negligent act or advice. This is commonly referred to as “causation”.

The relevant test is whether “but for” the professional’s negligence, would the loss have still have occurred. A claim will not succeed if the claimant would have acted in exactly the same way had the professional not been negligent.

It is also worth bearing in mind that in addition to a claim for negligence, there may be a claim for breach of contract and/or statutory duty, or in some circumstances misrepresentation and/or fraud.

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How much can you claim/how is any loss assessed in a professional negligence claim?

Damages are generally assessed from the date of the breach. The usual principle is that the claimant is put back in the position he/she would have been in had the professional not been negligent. The loss must have been caused as a direct result of the negligence and it must have been reasonably foreseeable.

It may be obvious that the claimant has suffered a loss in some cases, but in others it may be more complicated, and could for example involve valuing a loss of opportunity or loss of chance.

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What is the contributory negligence defence?

A professional may defend a claim on the basis that the claimant has caused or contributed to the losses suffered. This is referred to as the defence of contributory negligence. If the professional is able to show contributory negligence, the losses claimed may be reduced by a court having regard to the claimant’s share in the responsibility. It will also affect the claim if another party has caused some or all of the loss suffered.

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Is it necessary to take steps to minimise any loss?

The simple answer is yes. It is important to remember that a claimant has a duty to minimise any loss and avoid steps that could increase the loss. This is referred to as a duty to mitigate loss. If a claimant fails to mitigate its loss it may be unable to recover damages for losses which could have been avoided by taking reasonable steps.

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What steps need to be taken before issuing a professional negligence claim

Before issuing court proceedings (unless the relevant limitation period is about to expire, see “How long do I have to make a claim?” below) you are required to comply with a procedure known as the Pre-Action Protocol for Professional Negligence (the “Protocol”).

The Protocol encourages early exchange of information with the aim of dealing with matters swiftly and cost effectively, and is designed to encourage parties to resolve disputes without the need for court proceedings.

If settlement is not possible after you have complied with the Protocol, the next step is to issue court proceedings if you still want to pursue the claim. 

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How long do I have to make a professional negligence claim?

If court proceedings are to be issued, the claim must be brought within the relevant limitation period. The applicable limitation period in most professional negligence cases is six years from the date of the negligence. However, this may be extended where the negligence only becomes apparent at a later stage. In those cases, the relevant limitation period is three years from the date of knowledge of the facts which might give rise to a claim. There is a long stop date of fifteen years within which claims must be brought.

If you are considering bringing a negligence claim against a professional, you should always act as quickly as possible and seek legal advice on both the limitation period and the merits of your claim.

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Will I need to attend court?

If a claim reaches trial, it is normally expected that the claimant and other key witnesses will be called to give oral evidence. However, the majority of professional negligence cases settle before trial (even after proceedings have been issued).

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What if the professional who was negligent is insolvent or has limited assets?

This is something we consider carefully at the outset of the claim as there is little commercial benefit in pursuing a claim against a defendant with limited or no assets. A professional may (and is often required) to have professional indemnity insurance in place to protect against legal claims. It is important to investigate this at the outset of any dispute.

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How can I fund my professional negligence claim?

There are a number of ways in which clients can fund their claims and at the outset of any potential claim we are conscious that this will be one of the most important issues for clients to consider, particularly in circumstances where they have been let down by a professional previously, and already incurred fees with that engagement.

One question we frequently encounter is whether we offer “no win no fee” type funding arrangements such as Conditional Fee Agreements (“CFA”) and Damages Based Agreements (“DBA”). For professional negligence cases this is something we are willing to consider on a case by case basis and for more information on funding arrangements generally, please see our Litigation Funding Options page.

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If I lose, do I have to pay my opponent’s legal costs?

The general rule is the loser pays all or part of the winner’s costs (in addition to their own costs), but ultimately the court has discretion as to how to award costs and this is something we factor in when advising on the merits and proportionality of bringing a claim. It is usually possible to obtain an insurance policy ‘after the event’ or ATE, which is taken after a dispute has arisen to protect against the risk of having to pay your opponent’s legal cost and expenses if you lose a professional negligence claim. Please refer to our Litigation Funding Options page for more information on legal expenses insurance.

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