FAQs on Professional Negligence
What is Professional Negligence?
Professional Negligence is the term used to describe a type of claim made by an individual or an organisation against a professional adviser alleging that the professional adviser has either
- done something which he should not have done; or
- has failed to do something which he should have done,
as a result of which, the client has suffered some loss.
Although the term “negligence” is used which would require the client to show that the professional adviser owed a duty of care and that the professional adviser is in breach of that duty, in practice, many claims are pursued on the basis that the client will allege that the adviser is in breach of the terms of his contract with the client. Even if there is no express clause in that contract requiring the professional to take reasonable care, the Courts will always imply such a term.
What sort of professionals can be sued?
The range of professional advisers who can be sued is not limited. Due to the nature of the injuries suffered, medical negligence is a particular sub-branch which is usually conducted by those who are also experts in handling personal injury claims. However, claims for financial compensation can be made against solicitors, barristers, accountants, surveyors, valuers, insurance brokers, financial advisers, mortgage brokers and others.
What sort of losses can be claimed?
The main difference between Professional Negligence and other types of claims for negligence (e.g. those arising out of accidents causing personal injury) is that the client can claim compensation for financial loss and does not have to prove that he has suffered some form of personal injury.
Can I be certain I have a claim if my new adviser says he would have done things differently?
In most situations involving professionals, it will be possible to find a range of opinions from different professional experts as to how a particular situation ought to have been addressed. Therefore it is not sufficient to find another professional with the same qualifications who says that he or she would have done things differently. The mistake needs to be more serious than this. It needs to be clear that the conduct is significantly worse than most competent professionals in that discipline
If the Professional is at fault can I claim all my losses?
The rules for claiming compensation can be complicated. Once it is established that the professional has made a mistake, then the Court needs to consider how things would have been different if that mistake had not been made. It may also need to consider what would have happened if the adviser had done his job properly. It is possible that the client has suffered some losses which in fact have nothing to do with the mistake that the professional has made; in those circumstances compensation for the losses clearly cannot be claimed even if it is shown that the professional has made a mistake.
How long do I have to pursue a claim against my adviser?
The “limitation period” for pursuing a claim against a professional adviser is usually six years. However, there are different rules for calculating when that period begins. In the case of claim in contract the six years begin on the date that the breach of contract took place (e.g. the date when the negligent advice was given, the negligent action was taken). However, claims can also be pursued in the tort of negligence. Here the period of six years begins on the date that damage first arose (this can sometimes be later).
Therefore it is important to ensure that action is taken promptly. If the claim is going to be pursued the safe course it to ensure that it is issued in the courts no more than six years from the date of the breach of contract. In practice, in order to be able to issue proceedings by then it would be strongly advisable to instruct a solicitor at least six months before the expiry of a period of six years from when you first consulted the adviser in question.
In certain circumstances, where, for some reason, the damage did not come to light until much later on, it may be possible to pursue a claim against the adviser for a period of up to fifteen years rather than six years. In such circumstances however, it would still be necessary to pursue the claim within three years of the date that the client first discovered that he has a possibility of pursuing a claim.
Although I think I have suffered loss, how do I know that my professional is to blame?
Many clients are first informed of the possibility that they may have a claim against a former adviser by a new adviser who is reviewing the papers. Having the view of a current professional as to whether their matters were handled appropriately by the former advisor can be extremely helpful. However, it is often not possible to identify exactly what actually happened or what should have happened without the original file of papers. Therefore the first step in any investigation is to obtain the original file of papers from the former adviser and obtain a preliminary view from another professional expert who is similarly qualified to see whether they consider that there may be grounds for pursuing a claim.
A solicitor can usually handle the process for you.
How will I be able to finance a claim?
Most professional advisers are insured. Whilst this has the advantage of knowing money will usually be available to pay out if the claim is successful, most insurers do not like paying out money and will usually therefore investigate the claim thoroughly themselves and will probably instruct lawyers to do so on their behalf. A fully contested claim for professional negligence is likely to cost many tens of thousands of pounds and should not therefore be undertaken lightly and is not to be recommended unless the losses are significant.
It is always possible to pursue a claim if the client is prepared to pay the fees of the solicitor who will pursue the claim for him. If the claim is a particularly strong one, the solicitor may be prepared to offer a Conditional Fee Agreement (CFA) (i.e. a No Win, No Fee agreement).
The most important part of the case is carrying out the initial review of the merits of the case. It is necessary for this to be done soundly because it will form the basis of any future strategy. It will usually be necessary for the client to pay for the solicitor to carry out that initial review even if a CFA might be offered later. At this early stage it can also be helpful to obtain the opinion of a specialist barrister at the same time.