Professional Negligence FAQs

1) What is professional negligence?

2) What professionals can I make a claim against?

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

4) How much can I claim?

5) How long do I have to make a claim?

6) Can a claim be issued immediately?

7) Will I need to attend court?

8) What if the professional is insolvent or has limited assets?

9) What other factors need to be considered?

 

1) What is professional negligence?

A common phrase often associated with negligence claims is “bad advice”. However, the ambit of professional negligence is wider than this and occurs when a professional (which covers a number of professions) fails to perform his responsibilities to the required standard . For example; a solicitor may miss an important time limit or fail to advise you properly on a settlement offer.

Professional negligence claims have become more common in recent years. This is due to a combination of factors including an increasing reliance upon professional advice, the complexity of work carried out, and a raised awareness of legal rights. In addition, in times of economic downturn, losses suffered are often more apparent.

2) 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. In theory a claim may be brought against any professional, including solicitors, barristers, surveyors, builders, engineers, financial advisors, insurance brokers, architects, accountants, IT professionals, professional trustees and so on. The list is extensive.

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

There are a number of reasons why you may be seeking to pursue a claim against a professional. These include being unhappy with the service provided and not receiving the outcome/result expected based upon the advice of the professional.

To be successful with your claim you will need to demonstrate that you were owed a duty of care by the professional involved, the professional breached the duty of care, and the breach caused a loss to you. The mere fact of an error or bad service does not necessarily constitute negligence. You will need to demonstrate that the services provided by the professional fell below the standards of a reasonably competent professional, having regard to the standards normally expected in his profession. The test is objective; however its application is a question of fact in each case.

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.

4) How much can I claim?

If you believe that you have suffered financial loss as a result of the negligence of a professional then you will need to prove that the loss was caused as a direct result of the negligent actions of the professional.  As a general rule, damages are assessed from the date of the breach. 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.

It is only possible to make a claim for losses that are reasonably foreseeable.

5) How long do I have to make a claim?

If court proceedings are to be issued, they must be brought within certain time limits or the professional will have a strong defence that the claim has been issued out of time.

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 swiftly as possible and seek legal advice on the relevant time limits for bringing a claim.

6) Can a claim be issued immediately?

Once a potential claim has been investigated and it appears to be worthwhile pursuing, you should not simply issue court proceedings straightaway (unless the relevant limitation period is about to expire). A procedure known as the ‘Professional Negligence Pre- Action Protocol’ should be followed.

"The Protocol" provides a framework for an 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 which admits the claim, makes proposals for settlement or disputes the claim.

7) Will I need to attend court?

If there is no settlement after the parties have complied with the Protocol then court proceedings would need to be issued. It usually takes more than twelve months (depending on the value and complexity of the matter) for a claim to reach trial after court proceedings have been issued. If the claim does reach trial then it is expected that the claimant and any key witnesses would be called to give oral evidence. However, the majority of cases do settle before trial (even after proceedings have been issued).

8) What if the professional is insolvent or has limited assets?

A professional may have professional indemnity insurance in place to protect against legal claims. It is important to investigate this at the outset of any dispute.

9) What other factors need to be considered?

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.

In a professional negligence claim, 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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