Our professional negligence solicitors are experts in advising clients on claims against all types of professionals. Our team answers some of your frequently asked questions.
What is professional negligence?
Professional negligence occurs where a professional fails to perform their responsibilities to the required standard. It is careless conduct, and a failure to reach this standard, which ultimately results in a loss caused by this negligence. When a professional enters into a contract with a client, then that client is owed a ‘duty of care’.
What is a duty of care?
Professionals are legally bound to exercise reasonable skill and care when dealing with clients. If they fail to achieve reasonable expectations, then they have breached their duty of care.
Who can I make a claim against?
A professional could be (among a long list of others) your solicitor, barrister, accountant, architect, financial adviser, engineer, estate agent, surveyor, or insurance broker.
Do I have a claim?
To be successful in a professional negligence claim, you will need to establish:
- the existence of a duty of care on the professional’s part;
- that there has been a breach of this duty of care;
- that you have suffered a financial loss; and
- that your financial loss is a result of this breach. If the loss would have occurred in any event, even if the professional had not been negligent, you would not have a successful claim.
What can I claim?
It is only possible to make a claim for losses that are ‘foreseeable’. This means that the loss must have been something that could have been contemplated by the parties as being something that would be likely to happen if the incorrect action were taken.
Generally, the damages are assessed from the date of the breach. It may be clear that you have suffered a loss in some cases, for example a missed deadline. However, for other cases it may be slightly more difficult, and could for instance involve valuing a loss of opportunity.
Damages will be paid to put you back in the position that you would have been in had the professional done his/her job properly. To compensate you for your loss, rather than to specifically punish the professional.
How long do I have to make a claim?
To make a professional negligence claim you should act as swiftly as possible. In most professional negligence cases, the time limit to make a claim is six years from the date of the negligence. However, when the negligence has not become evident until later, this time limit may be extended.
Will I need to attend court?
Before any proceedings are issued, we will follow a procedure called the ‘Professional Negligence Pre-Action Protocol’. This provides the parties with a basis for an initial exchange of information, with the goal of resolving matters swiftly and cost effectively. The Protocol is designed to encourage parties to settle the dispute without the need for court proceedings which therefore eliminates extra time and costs. There are various methods of alternative dispute resolution, and many professional negligence claims settle before reaching a court hearing.
If the issue cannot be resolved between the parties, court proceedings may be issued. If this happens, there may be a trial, and you are likely to be a key witness and will therefore need to attend court. Your solicitor will explain exactly what is required of you.
Can I afford it?
Before we take your case on, we will discuss a full range of funding options with you.
What else do I need to consider?
It is important to note that you have a personal duty to mitigate your losses. This means that you must take practical steps to minimise your loss and avoid decisions that increase the loss. If you do not attempt to mitigate your loss, you will not be able to recover damages for losses which could have been avoided by mitigation.
In some cases, the professional may argue that you have caused or contributed to the losses suffered. This is referred to as contributory negligence. If the court agrees that you a partly responsible for your loss, then the damages awarded to you may be reduced by the court. It will also affect the claim if another party has caused some or all of the loss suffered.
If you have a question about a professional negligence claim, call our specialist team today on freephone 0800 988 7756.
