Professional Negligence Solicitors

If you have retained solicitors in a transaction or litigation and the outcome was not as expected or there has been a clear mistake on behalf of the law firm, then you need a professional negligence solicitor who not only has expertise and experience in handling professional negligence claims but is supported by a firm which regularly deals with the type of transaction or litigation which has gone wrong. Myerson is a full-service commercial and personal law firm and thus can call on expertise in many areas of the law.

Our professional negligence lawyers have a wealth of experience in dealing with professional negligence cases and because the firm has expertise in commercial litigation, company transactions, property transactions, wills and probate, construction and divorce we are best-placed to understand how a particular matter should have proceeded and where it may have gone wrong.

Sample cases we have dealt with.

• A claim by an individual against her former solicitors who negligently handled a claim against a utility company and her local council which had been struck out. The claim was successfully settled before trial.
• A claim by a Company against solicitors who negligently handled litigation by failing to exchange witness statements in time. The client’s claim was struck out. We took over the client’s professional negligence claim when it was not progressing and the claim was settled for a 6 figure sum.
• A claim on behalf of a company against solicitors because they failed to obtain permission to rely on expert evidence and admissions were made during the trial which was damaging to the client. The matter was settled very favourably for the client
• Claims by various companies who had interest bank rate swap claims but whose solicitors did not deal with them in time before limitation expired. The claims against the companies’ former solicitors settled at mediation.
• Claims by 3 individuals who would have been left legacies in a will had the solicitor affected the testator’s wishes in good time before his death.
• Claims by Individuals who were intended beneficiaries of a Will whose gifts failed due to negligent drafting by the solicitor.
• A claim on behalf of a property purchaser who was not advised by a conveyancer that his property was located above a coal mine.

Property transactions can be very complex. Our real estate department is one of the largest in the Northwest and is ranked top tier in Legal 500. Our expertise in property matters extends to professional negligence claims involving property and we have significant experience in successfully bringing claims against real estate solicitors, surveyors and architects.

Property negligence claims have become increasingly common recently as a result of many factors including the general increase in property values and the expanding commercial property market. They now make up a large proportion of professional negligence claims brought.

Examples of negligence:

• Failing to register an option or other property interests;
• Failing to undertake necessary property searches;
• Failing to warn a client that there was no right of way;
• Failing to warn a client that the property did not have the proper planning permission;
• Failing to check the tenancy rights of any tenants occupying a property;
• Failing to warn a client of the risks involved in carrying out repairs to a property prior to the exchange of contracts;
• Failing to warn a client of the risk involved in exchanging contracts on a purchase before exchanging contracts on a sale;
• Failing to warn a client of the dangers in exchanging contracts on a purchase prior to arranging a mortgage;
• Failing to notice that a lease of business premises restricted the use intended by a client;
• Failing to advise properly on the terms of a lease or tenancy agreement;
• Failing to ensure entries are removed from the property register prior to completion;
• Failing to spot a defect on the title or ownership of a property;
• Failing to advise properly upon rent review;
• Failing to properly break a lease.

Negligence claims we have dealt with against real estate lawyers

• A claim by a business whose first set of solicitors had been negligent by failing to serve a Lease Break Notice in time and whose second set of Solicitors were negligent in handling the litigation claim.
• A claim by a property development company which was negligently advised by a solicitor in relation to a property option agreement which meant that the project was not fundable and resulted in the company losing a valuable site.
• A claim against Solicitors for serving invalid break notices on the company’s landlord. The client was therefore liable for rent and other obligations under the lease for a further 2 years.
• A claim against solicitors who failed to serve a statutory notice on the company’s tenant which would have enabled the company to recover various charges from the tenant and its guarantor.
• A claim against solicitors who acted in connection with the purchase of a long leasehold of commercial premises. The client’s solicitor failed to advise him of the various onerous obligations that he had due to the head lease on the property.
• Claims by individuals against their former conveyancing solicitors because the solicitors failed to advise the clients of issues with their residential property when dealing with their purchase.
• A claim against solicitors because the solicitor failed to properly transfer title to a property to the client.

We are also able to identify when a surveyor may have breached their professional duties. The law provides that if a surveyor provides a valuation which is more than 10-15% above or below the correct value, that surveyor is likely to be found to be negligent.

An important factor in investigating a potential negligence claim against a surveyor is the type of report that was completed and provided to the client. In most cases, negligence claims are made when a full structural survey is issued. Full structural surveys provide the most information about the potential property meaning that there is more scope for potential negligence.

The surveyor report that provides the least detail is a mortgage valuation. Mortgage valuations provide only an evaluation of a potential mortgage meaning that other elements of the property such as its structural safety are not taken into account. Due to this lack of information, it can be difficult to claim negligence, however, if the claim is specifically relating to the mortgage in question you may be able to make a claim.

We have successfully brought claims against surveyors for the following errors:

• Failing to consider comparable properties in the local area;
• Providing a valuation on an incorrect basis e.g. potential value rather than current market value;
• Conducting a “drive-by” valuation instead of a full inspection; and
• Failure to spot defects in the property.

Architects are regularly instructed in commercial and residential property developments. Sometimes their failures can lead a property owner to suffer significant losses.

If an architect does not provide competent advice and you suffer a financial loss as a result, you may be able to bring a professional negligence claim against the architect in question.

It is common for individuals to hire architects as a way of relieving some of the responsibilities when they are designing or developing a commercial or residential property. In this instance, it is the duty of the architect to provide certain professional skills that meet a required level of competence. The architect will often plan the initial stages of the proposed building along with liaising with the construction team. Sometimes an architect will project manage a development.

The consequences of architect negligence can be extremely severe with potentially huge financial losses. There could be a situation where due to the architect’s negligence a property requires significant extra building work or even demolition.

Working closely with our commercial and property teams, we understand the issues that may be relevant when investigating a professional negligence claim against an architect.

When making a negligence claim it is important to define exactly what context the level of service has been delivered. If it is simply inadequate service then the potential of making a claim is minimal however if the architect is deemed negligent we will pursue the case for you. We will be able to identify sufficiently whether an architect has breached their professional duties.

Examples:

• Providing insufficient supervision during a project.
• Failing to manage a project effectively.
• Failing to advise properly in regards to any property plans or drawings.
• Failing to obtain sufficient planning permission.
• Failing to comply with necessary building regulations.

If an architect outsources specific tasks on a project to a third party and those tasks are not undertaken properly, it may be possible to hold the architect responsible for the mistakes of those third parties and claim compensation from the architect.

Given the complexities of our tax system, it is very common for individuals and companies to seek the assistance of tax advisers. Advice is often sought regarding tax avoidance schemes which allow an individual to reduce the amount of tax that might be otherwise payable. In certain situations, HMRC can take issues with such schemes meaning that the clients are left with a large backdated tax bills plus potential fines for late payments.

Tax advisers owe their clients a duty of care. It is a legal requirement that the tax advisor will provide a reasonably competent level of service. If this duty is breached and a financial loss is caused, there may be grounds to bring a professional negligence claim against the tax advisor in question.

Examples:

• Failing to consider the VAT implications on a property transaction
• Losing tax credits by not claiming them soon enough
• Missing deadlines for claiming tax credits or property related capital allowances
• Failing to reorganise group companies to reduce avoidable tax charges
• Failing to advise on proper payroll procedures
• Failing to provide standard tax advice to companies setting up or exiting the UK market
• Missing consequential adverse implications when giving commercial or basic tax advice
• Failing to advise on tax consequences of transactions such as disincorporation
• Failing to ensure all relevant criteria are met when facilitating a claim for specific tax relief
• Failing to advise on inheritance tax relief and how this liability can be reduced.

Accountants are regulated by one of two professional organisations.

The Association of Certified Chartered Accountants (ACCA)

The Institute of Chartered Accountants in England & Wales

Both of these organisations offer complaint procedures for individuals who have suffered from negligent advice. While this form of complaint procedure can provide positive outcomes there are instances where the outcome is unsatisfactory and you may need to take further action to recover your losses.

Examples of accountant negligence:

• Submitting incorrect tax returns or accounts
• Filing documents with HMRC and Companies House late
• Failing to give proper tax advice
• Failing to advise a sole trader to set up as a limited company so as to claim tax relief
• Overvaluing company assets
• Failing to detect fraud when auditing a company’s accounts.

If you engage the services of an independent financial advisor (IFA) they have a duty to act with reasonable care and skill when providing advice or handling or investing money.

If you have received negligent advice or been mis-sold a financial product, and suffered a loss as a result, you may be able to bring a professional negligence claim.

Independent financial advisors are regulated by the Financial Conduct Authority (FCA). The FCA has a Code of Conduct which all financial advisors should abide by.

If you have received bad or poor advice or a level of service that is sub-standard, you should first make a complaint to the relevant firm’s complaints department. However, internal complaints procedures do not always result in a satisfactory result. If so, your next step should be to contact the Financial Services Ombudsman.

This independent body can carry out an investigation and may be able to award compensation.

However, any compensation awarded by the Ombudsman may not reflect the losses you have suffered as a result of the IFA’s negligence or breach and court proceedings can always be brought for the full amount of losses you have suffered. The Ombudsman can only award up to £150,000 so if your claim is in excess of this sum you should consider court proceedings. We can assist with complaints to the Ombudsman and court proceedings where necessary.

Negligence involving IFAs can often be complex and technical. In order to successfully bring a negligence claim against the financial advisor in question, you will have to show that the advice you received was not consistent with advice that another reasonable professional would have given.

That will often require expert evidence from an independent financial advisor.

Loss alone does not constitute grounds for a negligence claim against a financial advisor. For example, if an investment loses value due to unforeseen economic circumstances, it may not be the IFA’s fault.

We have a wealth of experience in successfully brining claims against IFA’s for poor investment decisions where the risk profile of investments significantly diverges from the level of risk a client was prepared to take.

A professional has a duty of care to their client to perform their job to a reasonable standard and with reasonable care. Professional negligence occurs where the professional has not provided a reasonable level of skill and care and they fail to perform to the standards required of them which results in their client suffering damage or loss.

A professional is a person who is considered to have particular expertise and skills in the services they provide. A claim may be brought against any professional, including solicitors, barristers, surveyors, builders, engineers, financial advisors, insurance brokers, architects, accountants, IT professionals, and professional trustees.

It is not always the case that receiving bad service or an error on the part of the professional means that you have a negligence claim against them. In the first instance, you should call us to speak to one of our specialists who will look at the facts of your case and advise you as to whether you may have a claim.

It may be the case that you do not have a negligence claim against the professional but there is another type of claim that you can bring against them, such as breach of contract and/or statutory duty, or in some cases misrepresentation and/or fraud. Our specialists can advise you on this.

To be successful with a claim you need to be able to demonstrate that you were owed a duty of care by the professional involved, the professional breached the duty of care, and the breach caused a loss to you.

You will also need to demonstrate that the services provided by the professional fell below the standards normally expected of a reasonably competent professional in that field of expertise.

In some instances, the professional may be insolvent or have limited assets. This is something that we will investigate and advise you on at the start of a claim. If this is the case, it may still be possible to pursue a claim against the professional as they may have professional indemnity insurance in place to deal with any legal claims against them.

You need to be able to prove that the loss that you have suffered was caused as a direct result of the negligent actions of the professional.  This may or may not be straightforward depending on the facts of your case. Our specialists will be able to provide you with guidance as to what losses you may be able to claim for in your case and how they will be valued.

It is also important to be aware of factors such as mitigation of your losses which means that you must not do anything which increases the losses that you are claiming from the professional and you must take steps to minimise your loss and avoid decisions that increase your losses. How you do that depends on the facts of your case and our specialists will advise you on how to mitigate your losses and what it may mean if you do not mitigate your losses.  

If your claim is successful, the money that you receive is called damages. As a general rule, damages are assessed from the date of the breach of the professional’s duty to you.

There is a range of funding options available and our specialists will talk you through all your options at the start of the claim.

In certain cases, we may be able to deal with your case on a Conditional Fee Agreement (CFA), or “no win no fee”, basis.

Other options may include legal expenses insurance if you have this option under an insurance policy or private funding.

If you believe that you may have a professional negligence claim, you should call us without delay. Our specialists will be able to advise you as to how much time you have to bring a claim in your particular case.

If court proceedings need to be issued, they must be brought within certain time limits. If the time limit has passed, you may not be able to bring a claim against the professional. If you believe you may be out of time, speak to one of our specialists who can advise you on your options. 

In most cases, you will have six years to bring a claim from the date that the negligent act occurred. However, you may still be able to bring a claim after this period in certain circumstances where you only became aware of the negligence at a later date. If this is the case, you may have an additional three years from the date you became aware of the negligence to bring a claim.

In any case, it is important to speak to us as soon as you can to avoid being out of time to bring a claim.

Provided that there are no urgent issues as regards time limits, there are certain steps that should be taken before issuing court proceedings. After investigating the facts of your case, we will follow a procedure called the ‘Professional Negligence Pre- Action Protocol’ which is designed to encourage parties to settle a dispute without the need for court proceedings. 

The first stage of the Protocol is to send a Letter of Claim to the professional involved. This letter will set out the factual and legal basis for your claim.  The professional then has three months to investigate your claim. They should provide a Letter of Response in which they will either admit the claim and make proposals for settlement or they will dispute the claim. If the claim is disputed, the professional should set out their reasons in their Letter of Response.

In some cases, the professional may raise an argument called contributory negligence. This means that they are saying that you have caused or contributed to the losses you have suffered and which you are claiming from the professional. If this argument is raised, our specialists will be able to advise you as to the merits of these arguments and the effect that this may have on any award or settlement.

Once we receive the professional’s response, we will advise you as to your options for the next steps. If the claim is disputed, it may be that further correspondence with the professional is recommended to try to resolve the matter or we may recommend that court proceedings are issued.

The majority of cases do settle before trial, or even after proceedings have been issued as it is possible to settle a claim at any time. If the case proceeds to trial, it may be that you and any key witnesses will need to attend court to give evidence. However, our specialists will be there to provide guidance at every stage.

This is a flexible, voluntary and confidential form of ADR, in which a neutral third party (the mediator) works with all the parties towards a negotiated settlement. Unlike a judge, a mediator will not decide the case on its merits but will work to facilitate an agreement between the parties.

All the parties must agree to submit the dispute in question to arbitration. Like a judgment, the decision of an arbitrator is final and binding on all the parties.

This is most commonly used in construction disputes. Adjudication is a statutory right that the parties cannot contract out of. A party to a construction contract has the right to refer a dispute to adjudication at any time. The adjudicators’ decision is binding on the parties. Adjudication can be a speedy and cost-effective way of resolving disputes.

Our specialist team of professional negligence lawyers have substantial experience of ADR. We have the experience and flexibility to be able to advise you on how best to deal with your dispute, including when will be the best time to try and settle the dispute. Often, this will result in a saving of time, costs and aggravation.

If you have any questions or queries about ADR, please contact one of our specialist professional negligence lawyers to discuss further.