Professional negligence is a claim for compensation when a client has engaged a professional to do or perform a certain task, but where the professional then fails to act to the required standard and as a consequence, the client sustains a loss or damage.
Most commonly claims will be brought against a solicitor, accountant, valuer, architect or surveyor, and typically this could be for instance where a house purchase has run into unforeseen difficulties either because the purchaser was not made aware of something before entering into the transaction, or because something has happened to the property, such as subsidence, and there were clear warning factors that should have been drawn to the client's attention before they proceeded with the transaction.
Equally a claim could be considered where a client has sought advice about mitigation of tax, and the advisor has failed to advise the client about for instance a relief that could have been claimed, which can no longer be claimed because it does not have retrospective effect.
Negligence is much more than poor service or where the client has not got his or her money's worth out of the professional. Bad advice does not necessarily equate to negligent advice (although there could be situations where they are the same) and this needs to be approached with some caution. In general terms there needs to be a contrast drawn between poor service issues and negligent advice.
Likewise the standard of advice that is required from the professional could vary depending on the experience of the client, an inexperienced client may require more advice or assistance in a transaction than an experienced businessperson.
If you have suffered loss because of poor service which is not considered to be negligent advice, then this may not be the end of the matter because most professionals operate under the supervision of a regulatory body, and it may be that you can claim compensation through other channels. We will keep an open mind about the most effective source of recovery of compensation for you, and direct you through the relevant processes.
The key elements of a professional negligence claim are to establish a duty of care against the professional person, either in terms of a formal professional retainer agreement or where a professional has assumed responsibility to advise in a particular situation, or where a person has been affected by the advice that has been given. Once that foundation stone has been laid, a breach of that duty must be established, and then damage flowing directly from that breach.
There are two main stages to a negligence claim:
1. Establishing liability - in other words to ask who is responsible for what has occurred, and this requires an analysis of the relationship between the professional person and his or her client and what service they were to perform to assess whether it amounts to "a duty of care", and whether that has been breached.
It may in some circumstances also be necessary to consider whether more than one person has been responsible for the loss or damage.
2. Identifying what loss or damage flows directly from that breach (although not all loss is recognised by law for this purpose) - Some caution has to be exercised as it may be important to establish the true cause of the loss, in other words has it been brought about by external factors, such as in a property matter, whether loss is as a consequence of a fall in the value of the property market, or because of the alleged negligent act.
In order to consider a claim it is vital that you should gather together as much documentation as possible, such as any retainer agreement with the professional, and any letters or emails written. When we have taken full instructions from you we will consider how best to proceed.
We may need to obtain an experts report. For instance if the dispute concerns subsidence or defects to a property that was not picked up by the surveyor at the acquisition stage, we may need to appoint an independent surveyor to consider whether in all the circumstances a reasonable surveyor would have picked up on the defects, and whether the client would have acted differently had the true position been known.
Both Mark Walkington and Matthew Miles are members of the Professional Negligence Lawyers Association and we work closely with a panel of experts covering a wide variety of different professional disciplines, and we can recommend a suitable choice of expert for your case.
Once we have conducted initial enquiries and are satisfied that there is a good claim, parties to such a claim are obliged under the rules of Court to engage in pre action dialogue to attempt to narrow the issues between the parties, and hopefully to promote settlement without having to resort to formal court proceedings. This dialogue is known as the "Pre Action Protocol for Professional Negligence Claims".
There are no hard and fast rules as to the chance of settlement without resorting to the Court as this depends on a wide variety of factors, including the attitude of the Defendants and more likely the Defendants' professional indemnity insurers.
The length of the pre action dialogue will depend on the complexity of the case and whether it is proving fruitful. As a rough rule of thumb, an average claim could take 3-6 months to exhaust the pre action protocol process, before moving on to formal court proceedings. Court proceedings can themselves take many months to reach Trial, although the general trend is towards resolving claims either before proceedings begin, or at least at an early stage of the proceedings.
It is also important to consider whether the dispute might be capable of resolution by mediation.
At the outset we will consider with you the options for funding the litigation including conditional fee agreements (otherwise known as no win, no fee), insurance funding, hourly rate retainers, and in some cases third party funding.