As a private individual, it’s almost certain that at some point you will need the advice and expertise of a professional to manage personal matters.
These could include significant life events such as purchasing or renovating a home, investing your savings, or preparing a will.
Given the importance and financial implications of such matters, it's only natural to seek the services of a qualified expert, whether a solicitor, will drafter, financial advisor, accountant, tax advisor, surveyor, or architect, to ensure everything is handled properly.
Our Professional Negligence Lawyers explore what happens if these professionals get it wrong.
What is professional negligence?
Unfortunately, it's not uncommon for professionals to make mistakes; after all, they are human. When this happens, you may be able to pursue a claim for professional negligence.
Professional negligence occurs when a professional acting for you makes an error that results in you suffering financial loss. It's important to distinguish professional negligence from a simple service-level complaint.
A claim can be made against a professional you’ve paid for expert services, such as a solicitor, barrister, surveyor, architect, accountant, financial advisor, or tax advisor.
These professionals have a duty to act with the care and skill expected of a reasonably competent individual in their field of expertise.
What are the key elements for a successful claim?
To successfully bring a professional negligence claim, you must be able to prove the following elements:
- The professional owed you a duty of care;
- The professional breached that duty of care;
- The breach caused you to suffer financial loss; and
- The loss was reasonably foreseeable.
A professional negligence claim will not succeed unless all elements can be satisfied. It is often the case that a claimant has strong evidence to prove the first 2 elements but encounters difficulty proving that the breach has caused the loss suffered or that this was reasonably foreseeable.
A professional defending a claim will typically argue that even if they have been negligent, their actions (or omissions) have not caused the claimant any loss, or the loss the claimant has suffered was not caused by the professional’s actions.
If a claimant cannot prove this third element, their claim will fail.
Whether the professional’s actions or omissions have caused the claimant’s loss, known as causation, is often not straightforward and can involve complex legal analysis.
Even where they have caused a loss, you, as the claimant, will then need to attempt to mitigate your loss. This means you need to take reasonable steps to reduce or limit the loss where possible.
Sometimes you may be able to mitigate your loss in such a way that you no longer suffer a loss. If so, you could still claim the reasonable cost of fixing the issue.
Valuing a professional negligence claim
Once you have established that the elements of negligence are satisfied, the next stage is to determine the value of your potential claim. Valuing professional negligence claims can be complicated and typically requires an expert to produce a valuation report.
If the value of the claim is low, there is a risk that you may incur legal fees that outweigh the potential compensation.
Therefore, it’s important to establish the value of the claim early on to ensure it is in your best interests to proceed with legal action.
Additionally, you should consider whether the professional has sufficient assets to satisfy any judgment, although many professionals will have insurance to cover such claims.
A specific pre-action protocol exists for professional negligence claims known as the Professional Negligence Pre-action Protocol. If you believe you may have a claim and the value warrants pursuing further action, a solicitor will prepare what is called a letter of claim to the professional. This sets out the detailed circumstances of your claim, the loss you have suffered and what remedy you are seeking.
As mentioned above, most professionals will have liability insurance, therefore their insurer’s solicitor will generally prepare a formal response to this letter, in which they will usually say whether they accept or deny liability and whether they agree or disagree with the valuation (quantum) of your claim.
After this, it may be possible to agree on a settlement of your claim through correspondence between your solicitor and the insurer or by using a form of alternative dispute resolution such as mediation.
However, where there is a fundamental disagreement, it may be necessary to issue court proceedings.
What is the outcome of a successful claim?
The remedy usually claimed in a professional negligence claim is damages (i.e. monetary compensation).
If the claim is successful, this will be either by court order following a trial, or by a negotiated out-of-court settlement between the parties.
In circumstances where court proceedings are issued, the court will usually order the defendant to pay a proportion of the costs you have incurred in pursuing the claim if your claim is successful.
The amount of those costs will depend on various factors, but it is always worth bearing in mind that it is very rare to recover 100% of your legal costs.
What next?
If you believe you may have been a victim of professional negligence, it is important to seek specialist advice as soon as possible. This is because claims for professional negligence are subject to a six-year limitation period.
It may still be possible to bring a claim after the six-year time limit if you did not, and could not reasonably have, known you had a claim within that time frame. In such cases, the limitation period may be extended by three years from when you knew, or ought reasonably to have known, that you had a claim.
Issues of limitation can often be complex and fact-specific, and you will need to take advice based on the specific circumstances of your case.
Contact Our Professional Negligence Lawyers
If you believe you have suffered financial loss due to professional negligence, it is vital to act promptly to protect your rights and interests.
Our specialist team has extensive experience advising individuals in complex negligence claims across various professional services. We offer clear, strategic advice tailored to your circumstances and will guide you through the process with transparency and care.
0161 941 4000
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James Griffiths
Associate
James is an Associate in our Dispute Resolution team. James has specialist expertise in complex contractual disputes, shareholder/partnership disputes, professional negligence disputes, claims under s423 Insolvency Act 1986 and commercial agency claims.
About James Griffiths