Professional negligence

• Giving advice to clients that causes them a loss
• Issuing claims after limitation has made the claim time barred
• Not following client instructions correctly
• Failing to sell or buy property properly or drafting a lease badly
• Under settling compensation claims, this is especially true in personal injury and medical negligence cases.
• Causing claims to be struck out by the courts
• Making errors in will drafting or failing to administer an estate in accordance with the deceased wishes.

• Giving advice to clients that causes them a loss
• Failed to value company assets correctly
• Missed an important deadline causing a financial loss
• Provided incorrect tax advice
• Bad advice relating to Employee Benefit Trusts and pensions.

• Giving advice to clients that causes them a loss
• Undervalued or overvalued a property causing a financial loss
• Missed defects or didn’t advise correctly on the extent of defects
• Recommended the incorrect type of survey for property.

• Failure to advise properly in relation to Advance Payment Notices
• Advising to invest in unsuitable pensions and SIPPS
• Negligent advice relating to unsuitable high-risk investment products and UCIS. 

Professional negligence is when a professional fails to perform their services to the standard required.

Establishing negligence alone is not enough to bring a claim.  The key is to be able to show that the negligence caused you a loss (usually financial).

An example might be an accountant recommending a tax scheme to you which is later challenged by HMRC, causing significant penalty payments due from you. If the accountant knew that you had a low appetite for risk and recommended this type of investment anyway, they may have been negligent in doing so.

There are many other examples of professionals that can be subject to professional negligence claims, including: solicitors, barristers, Independent Financial Advisors, surveyors, builders, engineers, insurance brokers, architects, IT professionals, professional trustees. This is not an exhaustive list.

Negligence is an umbrella term for all types of claims where you are owed a “duty of care”. There are many different types of claim that fall inside this, including the following: occupier’s liability, medical negligence, personal injury, and professional negligence. Each of these areas are distinct, but they are all specialist categories that fall under the general term of negligence - where someone owes you a duty and they have failed to act in accordance with it.

In order to establish a claim against a professional for negligence you will need to prove the following:

• The professional owed you a duty of care;
• The duty of care was breached;
• The breach of duty caused a loss; and
• The loss complained of was reasonably foreseeable.

You have to establish that there was a relationship between you and the professional that was sufficiently close to establish or impose a legal obligation upon the professional to adhere to a standard of reasonable care when carrying out the services that they have been instructed to carry out.  

There is often an already recognised duty in the case of many professionals, such as a solicitor’s duty to their client.

The professional needs to have breached the duty by falling below the standard of care that could be reasonably expected from a professional carrying out those services in those circumstances.  Just because a professional has not performed to the best of their ability, does not necessarily mean that they have been negligent.

One of the key elements in recovering damages following a professional’s negligence is proving that their negligence caused you loss. In other words, can you show that you relied on the advice and would have done something different if you had been advised properly?

That sounds as if it should be very easy in every case, but the courts will look closely at what the professional was instructed to do, the intended scope of the retainer, and to what extent any advice given was truly relied on by the client.

The question of whether the client would have acted differently if the advice had not been negligent could depend heavily on the quality of witness evidence of the client and the professional and any additional evidence which can support that the client acted in reliance on the advice.

If you are making a claim against someone for professional negligence, the burden of proving the claim will rest with you. That means it will be up to you to be able to prove that the professional you are bringing the claim against has breached the duty that they owed to you.

You will need to be able to show that each of the four requirements above has been met. This will mean collecting any retainer, terms and conditions, emails, letters or other documentation setting out the arrangements in place with the professional.  Clients may also need to look back to the dates of any meetings which took place with the professional and note down their recollections of what was discussed and advised at those meetings.

It will also be necessary to collect evidence such as emails, correspondence, documents or photographs showing the loss or damage caused and the action (or omission).

Yes. Solicitors owe a duty of care to their clients and can be pursued in a claim for professional negligence if the above ingredients are met.

In addition to a potential claim in professional negligence, if there was a written contract between you and the professional and the professional has failed to perform certain terms of the contract (whether expressly stated or implied by law), you may be able to bring a claim against the professional for damages flowing from the breach of contract.

In some circumstances it may be possible to bring both a negligence and/or breach of contract claim against the professional, subject to any claim being within the prescribed time limits.

A professional negligence claim becomes time-barred six years after the breach of contract or actual damage resulting from a negligent act occurs. The “actual damage” may not be the financial shortfall, easily quantified once an asset is sold or valued, but could be the ‘paper’ loss where you have paid money and obtained assets worth less than expected. The claim may then be time-barred six years following the negligent advice or work, even if you are not yet aware of the problem.

These rules are fraught with difficulty when interpreted in practice and the court’s tend to pin the start date for time to run to the earliest point. It is a vital issue because either you have a right to claim or you are too late: there are no half measures.

If you have only just become aware of a problem, then you may have another three years in which to claim, but the assessment of when you had the sufficient level of knowledge can also be difficult. The court assesses what you ought to have known about the problem - which may be different from when you think you were, in fact, clearly aware that you had a right to claim for the negligent act.

If you think you may have a claim, it is important to seek expert legal advice as quickly as possible.

The essential elements to prove are:

• That the professional owed you a duty of care, which might arise because there is a contract between you and them, or because there was a particular relationship that gave rise to the need for them to be careful in their work.
• That duty must have been breached by poor advice or work.  The test is whether they did a poor job by comparing what a reasonably competent professional in their position would have done.
• And the breach must have caused loss, whether to a physical asset or pure financial loss. 
• If those elements can be shown – and often the question of whether the work fell below the normal standard is one that can only be answered by an expert in that area - then a claim can be made.

The first step is the pre-action protocol.  A claim must be set out in a Letter of Claim, and the defendant has three months in which to provide a reasoned reply.  The parties are then expected to consider whether the claim can be resolved out of court. If that is not possible then a Claim Form can be issued at court.  

Once the parties have set out their cases in writing, the court will set up a timetable to resolve the dispute, dealing with a full exchange of relevant documents, an exchange of written recollections of the witnesses and opinions of experts and then a date for trial.

Typically the whole process from the first letter of claim to a trial can take up to two years. At any stage mediation can be considered and for lower value claims (up to £150,000) possibly the Financial Ombudsman Service can be used to provide an independent assessment of the claim and award compensation instead of making a claim at court.

You must be in time to make a  claim, this is known as the 'professional negligence limitation period'. There are different time limits for different types of claim, but on the whole there is a time limit of six years to bring a claim from the date the negligence occurred. However, if the negligence does not come to light until a later date there are circumstances where this can be extended.

If a claim is successful then the negligent professional (who should usually have professional indemnity insurance) will be ordered to pay compensation.  The aim is to put the claimant in the position they would have been in had the negligence not occurred.

Sometimes if the professional believes the loss was also caused by or added to by the actions of the person claiming against them, then they can defend themselves by alleging ‘contributory negligence’.  That can result in the amount of compensation being reduced to reflect the relative blame of each party. 

If the advice you were given by a professional has caused you a loss, you may have a claim. It is important for these types of claims to prove that there has been a loss and that the professional breached their duty of care to you when carrying out your instructions.

The value of your claim can vary greatly depending on the personal details and circumstances. Our solicitors will work with you to determine your individual loss and whether you have a case for professional negligence.

Again, this depends on the individual claim. The majority of people tend to search for "professional negligence solicitors no win no fee" but this may not be the best option for your claim.

Once we have done our initial assessment we will be able to advise you on your funding options. It may be that we can take the case on a Conditional Fee Agreement (CFA), more commonly known as a professional negligence no win, no fee agreement.

You may also have legal expenses covered by your home insurance policy, often referred to as Family Legal Protection. We will discuss all your funding options with you after our assessment of your claim.