Last week we looked at the definition of professional negligence. Once you have determined that there may be a claim, how does the process work?
How much can I claim?
If you believe that you have suffered financial loss, you will need to prove that that loss was as a direct result of the professional’s negligence. You will only be able to claim for losses that were ‘reasonably foreseeable’.
There are a number of ways to value a professional negligence claim. Sometimes it will be fairly clear and you will be able to show that you have lost a specific sum as a result of the negligence. In other cases, you may need to show, for example in negligence related to a property purchase, the difference in value between the price that you paid, and what the property was actually worth.
Further, you are required to show that you have mitigated your losses. This means that you must take reasonable steps to minimise your loss and avoid steps that increase the loss. A failure to mitigate may mean that you are unable to recover damages for losses which could have been avoided by taking reasonable steps.
Is there a time limit?
Court proceedings must be started within six years from the date on which the negligent act or omission occurred. However, sometimes you might not know about the negligence straight away. In such cases, you will have three years from the date on which you found out about the negligence, or six years from the date of the negligence, whichever is the longer.
In any case, claims must be brought within 15 years of the date of the negligence.
What is the process?
The court rules provide a framework (known as the Pre-Action Protocol for Professional Negligence) in order to encourage parties to deal with such claims quickly and cost effectively, with the intention that as many cases as possible are settled without the need for court proceedings.
The first step under the Pre-Action Protocol is to send a Letter of Claim to the professional, setting out the background to the claim, the allegations made, and providing copies of the key documents on which you rely. The professional should then provide a detailed response within three months.
Ordinarily at this stage, the parties will enter into discussions with a view to narrowing the issues in dispute and hopefully settling the matter. If the parties cannot settle, court proceedings or adjudication will need to be commenced.
Adjudication is a fairly new procedure for professional negligence claims, but where the case is not reliant on much expert evidence and if both parties are willing to go to adjudication, it should lead to a swift resolution. Sean McHale , a solicitor in the litigation department, looked into this in more detail in a blog last month.
Court proceedings, conversely, can take over a year to reach trial. Many cases do settle out of court, even after proceedings have been issued however.
Next week, we will look at what happens where the professional does not have the money to pay your damages, and the importance of professional indemnity insurance.
If you have a claim against a professional as a result of his negligence or breach of contract, our experienced professional negligence team is here to help. Please contact Steven Newdall, our managing partner and head of our professional negligence team on 0113 297 3187.