Professional negligence FAQ's

What is professional negligence?

Professional negligence occurs where a professional fails to perform his responsibilities to the required standard – i.e. the level required of a reasonably competent person in their profession) and their failing has caused you loss.

 What type of professionals can I claim against?

A professional negligence claim can be made against any professional who provided you with a service or agreed to advise you. Some examples include but are not limited to: lenders, accountants, auditors, solicitors, independent financial advisers, surveyors and insurance brokers.

How do I establish if I have a claim?

To bring a successful claim, you must establish:

  • That the professional owed you a duty of care. This might arise because there is a professional relationship between you and them.
  • The duty owed must have been breached by the professional either by poor work or advice. The test is whether the professional’s conduct fell below the standard of a reasonably competent professional in their area of expertise.
  • Finally, the breach of duty of care must have caused you loss.

Is there a limit to how much I can claim?

The aim is to put the Claimant back in the position they would have been in – had the negligence not occurred. They will only be compensated for those losses which could have been reasonably foreseen at the time of the advice or service provided by the professional.

What can reduce damages?

Contributory negligence

This is where damages can be reduced if, by your own negligence, you contributed to your loss.

Mitigation

Damages might also be reduced if you did not take reasonable steps to limit the loss caused.

Is there a time constraint to making a claim?

The primary limitation period in negligence actions is six years after the final date on which the relevant cause of action accrues – (Section 2 and section 5, Limitation Act 1980 (LA 1980).  In tort, no cause of action accrues until all elements of duty, breach and damage are present.

There is a secondary limitation period (s.14A the Latent Damage Act 1986) for negligence claims and for latent defects. This is where the fault or defect existed – but was not apparent at the time. In these cases, the limitation period is six years from the date on which the cause of action accrued –  or three years from the date when you knew or ought reasonably to have known material facts necessary to bring an action alleging negligence.

Will I need to attend court?

Where possible, it is best to settle professional negligence claims without the need for Court proceedings. The Civil Procedure Rules contain a Professional Negligence Pre-Action Protocol the parties must follow before issuing a formal claim at Court. If settlement isn’t reached as a last resort, Court proceedings will be commenced.  Furthermore, if the case proceeds to trial, Court attendance will be required – unless settled before that date.

What if the professional I am claiming against is bankrupt?

Most professionals will have professional indemnity insurance (PII). This is an insurance policy that professionals are required to take out which will pay out damages if they are found to be negligent.

What other factors should be considered?

Factors such as contributory negligence and mitigation need to be considered as these would reduce the damages. In addition, pursuing a claim can be a costly process.  Even if you win at court you may not recover all the costs you have spent on the case from the defendant. Therefore, how you fund the claim is also vital.

If you have a claim against a professional or would like further information please call our  Professional Negligence team on 0800 988 7756 today.

 

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