Professional Negligence FAQs

This page sets out a number of Frequently Asked Questions in relation to Professional Negligence claims

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.

What is professional negligence?

Common phrases we often hear from clients associated with negligence claims are “bad advice”, “bad representation” or “malpractice”. However, professional negligence is much wider than this and occurs when a professional (which covers a number of professions) fails to perform their services to the required standard and this failure causes a loss. An obvious example would be a solicitor missing an important time limit or failing to advise properly on a settlement offer.

If you think you have suffered a loss as a result of professional negligence, it is important to act quickly and seek independent legal advice on the merits of your potential claim.

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What professionals can I make a claim against?

A professional is a person who is considered to have particular expertise and skills in the services they provide. A professional negligence claim can be made against any professional (individuals and companies) who has failed to perform his/her responsibilities to the required standard.

Examples of professionals you can make a claim against include solicitors, barristers, surveyors, builders, engineers, financial advisors, insurance brokers, architects, accountants, IT professionals, professional trustees and so on. The list is extensive.

For more information and examples of the types of negligence which may arise, see our pages on claims against LawyersFinance Professionals and Property Professionals.

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Do I have a claim and what do I need to prove to be successful?

Having been let down by a professional, the question of whether there is a potential claim and how to assess this can be daunting for clients. To help address those concerns we set out the relevant legal principles below. In order to be successful with your claim, you will need to prove that you can meet the professional negligence “test”, which is as follows:

  1. Duty of Care

As a starting point, you must prove that you 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.

  1. Breach of Duty

You must also prove that the professional breached the duty of care that was owed to you. To do this, you will need to demonstrate that the services provided by the professional fell below the standards of a reasonably competent professional. The professional is judged by a standard of care of a reasonably competent professional specialising in the area in which they hold themselves out as having expertise in whether that is law or accountancy etc.

  1. Causation/Loss

Once you have established that there was a breach of duty, you must also prove that the loss 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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Loss/how much can you claim?

As a general rule, damages are assessed from the date of the breach. The general 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 you have suffered a loss i.e. if a deadline has been missed but in other cases it may be more complicated, and could for example involve valuing a loss of opportunity or loss of chance.

The professional may also seek to argue that you have 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 your 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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Do you need to take steps to minimise your loss?

The simple answer is yes. It is important to remember that you have a duty to mitigate your losses.  This means that you must take reasonable steps to minimise your loss and avoid steps that increase the loss. If you fail to mitigate your loss you are unable to recover damages for losses which could have been avoided by taking reasonable steps.

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How can I bring a professional negligence claim?

Once a potential claim has been investigated and it appears to be worthwhile pursuing, 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 ‘Professional Negligence Pre-Action Protocol (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 settle a dispute without the need for court proceedings. This process involves sending a Letter of Claim to the professional which should set out the factual and legal basis for the claim, allegations against the professional, losses claimed and include any key documents relied upon.

The professional is required to acknowledge this letter within 21 days of receiving it. After this, the professional has three months to investigate the claim and provide a Letter of Response in which they can either admit the claim and makes proposals for settlement or dispute the claim.

If settlement is not possible after you have complied with the Protocol, the next step is to issue court proceedings. It usually takes more than twelve months (but can be much longer depending on the value and complexity of the matter) for a claim to reach trial after court proceedings have been issued. The parties can carry on negotiating and make offers to settle the dispute all the way leading to trial. Cases can also settle at the doors of the court even after trial has started. 

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How long do I have to make a claim?

If court proceedings are to be issued, the claim must be brought within the relevant limitation period. Different types of legal claims have different limitation periods.

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 your claim reaches trial, it is normally expected that you 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 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 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 cost?

The general rule is the loser pays the winner’s costs (in addition to their own costs). 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 case. Please refer to our Litigation Funding Options page for more information on legal expenses insurance.

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