In this article, we will explain what professional negligence means and how you might be able to make a claim if you have suffered losses due to poor advice or mistakes by a professional.
If you are reading this because you have suffered losses due to poor advice from a professional, our professional negligence solicitors can help. We will guide you on whether you have a claim for professional negligence and how to recover your losses.
In this guide we'll cover:
- Do I have a valid claim for professional negligence?
- What types of professionals can I bring a negligence claim against?
- What are some common examples of professional negligence?
- How do I prove that a professional’s conduct fell below the expected standard?
- What evidence do I need to support my claim?
- How do I make a professional negligence claim?
- Can I claim damages for non-financial losses, such as stress or reputation damage?
- What is the time limit for making a claim for professional negligence?
- What defences might the professional use to challenge my claim?
- What happens if I lose my claim for professional negligence?
- Summary
Do I have a valid claim for professional negligence?
To bring a valid claim for professional negligence, it is important to establish if the standard of care the professional owes you is set out in the contract between you or is implied by statute, and also whether the law of torts is relevant, it is commonly the case that both are applicable in relation to many professional negligence claims, meaning in practice that both a claim in contract and tort are brought at the same time.
There are certain key elements that you will need to demonstrate a valid claim in tort. In brief, these elements are:
- That the professional in question owed you a duty of care to exercise reasonable care and skill in carrying out the work they were doing for you.
- That the professional breached that duty, because they failed to meet the standard expected for work of that nature.
- The negligent breach directly caused you to suffer loss or harm – known in legal terms as ‘causation.’
To be absolutely certain that your situation meets these elements, it’s best to take advice from an experienced professional negligence solicitor as soon as you suspect that the professional you have instructed has not fulfilled their duties to you properly.
What types of professionals can I bring a negligence claim against?
There are several different types of professionals that you can potentially bring a negligence claim against. The kinds that our solicitors commonly see claims against are lawyers (solicitors and barristers), surveyors, accountants, architects, insurance companies and financial advisors. Each of these industries are regulated by a body of authority specific to the profession and these regulatory bodies in turn have their own Codes of Conduct that its associated professionals are expected to follow when dealing with their clients.
What are some common examples of professional negligence?
Some common examples of professional negligence can be found in the following scenarios in circumstances where all of the elements for a valid negligence claim are met:
- A barrister making decisions on behalf of their client that they weren’t authorised by the client to do.
- An architect creating a flawed design which leads to construction problems or a breach of building regulations.
- An accountant failing to provide accurate figures for tax purposes.
- A financial advisor giving inaccurate pensions advice.
- A surveyor providing an overly exaggerated property valuation, or failing to identify serious structural problems with a property.
How do I prove that a professional’s conduct fell below the expected standard?
Proving that a professional’s conduct fell below the expected standard will involve seeking expert evidence. The purpose of this will be to demonstrate that the services provided by them fell short of the standards of a reasonable professional, bearing in mind the standards usually expected in that particular profession. The expert, who will be another professional, will most likely prepare a report which sets out what the professional you’re alleging negligence against should have done when it came to their conduct or advice, as opposed to what they have done. In doing this, they will consider the relevant Code(s) of Conduct for the industry in question, along with professional guidelines, statutory regulations and case law.
What evidence do I need to support my claim?
Gathering evidence in support of your claim is crucial. While the circumstances of your case will determine exactly what’s required, some general examples of what you will need are as follows:
- Details of what you instructed the professional to do and what was agreed between you and them before work began – e.g. terms of engagement.
- Documents such as contracts, letters, emails and internal file notes.
- Any assessments and/or reports you have received from the professional.
- Any evidence that shows the actual or anticipated financial loss you have suffered.
In most professional negligence scenarios you will need to find an expert witness to bolster your claim. If you have suffered negligence in a legal context, i.e. in working with a barrister or a solicitor, the court might decide to rely on their own expertise instead when assessing the merits of your case.
How do I make a professional negligence claim?
The first thing to make certain of before you formally issue a claim for professional negligence is that you follow the steps set out in either the Professional Negligence Pre-Action Protocol (applicable, but not limited to, claims against solicitors, barristers, tax advisors and accountants) or the Construction and Engineering Disputes Pre-Action Protocol (applicable to claims against quantity surveyors, architects and engineers).
Compliance with the correct pre-action protocol is required if you want to make a claim. This is because court proceedings should be a last resort, so the protocols are designed to minimise the likelihood of a formal claim being issued. If you fail to follow the protocol that’s relevant to your dispute properly, the court may impose costs sanctions on you at a later stage.
The Professional Negligence Pre-Action Protocol specifies the following steps to take before you’re permitted to make a claim:
- Sending a Preliminary Notice: You should start by notifying the professional in question that you’re intending to start a claim against them, with a brief summary of the reasons and the financial value of it, if known. You should also highlight the need for them to contact their professional indemnity insurers.
- Sending a Letter of Claim: This letter should clearly set out, in a chronological order, a summary of the facts giving rise to the dispute, details of the financial loss and how it has been calculated (or if not yet known, the reasons why and an indication of when this information can be provided), confirmation of whether you have appointed an expert and an explanation of the legal arguments you will be relying on in support of your case. You should also include copies of any important documents and again, the letter ought to include a request for the professional to share a copy of it with their professional indemnity insurer.
- Awaiting a Letter of Acknowledgment in response: The professional must acknowledge receipt of both the Preliminary Notice and the Letter of Claim within 21 days of receipt. Within three months thereafter, they should investigate the allegations and send either a full and detailed Letter of Response or Letter of Settlement – or both. Any Letter of Response should make it clear whether liability is accepted or not.
- Alternative Dispute Resolution (ADR): It is usually at this point that parties will think about engaging in ADR as a potential means to resolving the dispute, either by negotiation, mediation, adjudication, arbitration, Early Neutral Evaluation (ENE) or through an ombudsman’s service.
- Issuing proceedings: This will only be necessary if following the steps pursuant to the protocol doesn’t resolve the dispute.
The Construction and Engineering Disputes Pre-Action Protocol outlines the steps below before you are allowed to bring a claim:
- Checking any contractual requirements: This is key because the existence of an ADR clause will determine whether engaging in a form of ADR is optional or mandatory, if one is present in the contract, and this must be acted upon before continuing along the steps of the protocol.
- Sending a Letter of Claim: This is similar to the process outlined in the Professional Negligence Pre-Action Protocol, as stated above.
- Awaiting an acknowledgment: The professional should respond by acknowledging the Letter of Claim within 14 days, then by providing a Letter of Response within 28 days. You will then be required to reply to this within 21 days, and to any counterclaim.
- Pre-Action Meeting: This should happen within 21 days after receipt by you of the professional’s letter of response, or (if you intend to respond to any Counterclaim) after receipt by them of your Letter of Response to the Counterclaim. The aim of the meeting is for parties to agree what the main issues of the dispute are, to identify what’s at the heart of the disagreement and for you and them to consider how to resolve the dispute without resorting to litigation.
- Issuing proceedings: As with the previous protocol, this will only be necessary if following the steps pursuant to the protocol doesn’t resolve the dispute.
Can I claim damages for non-financial losses, such as stress or reputation damage?
Whilst it’s technically possible to claim damages for non-financial losses in cases where there’s significant emotional or mental anguish caused by the negligence, or there’s damage to reputation, in practice it’s more challenging to prove and quantify.
What is the time limit for making a claim for professional negligence?
The time limits for making a professional negligence claim are set out either in statute, or in an exclusion or limitation cause in your contract.
The relevant statutory time limits are set out in the Limitation Act 1980 (LA 1980) and the primary limitation period for causes of action in contract and tort is six years. The six-year period starts on the date that the cause of action occurs. The limitation period position between contract and tort is different:
- In contract, the cause of action occurs as soon as the contract is breached, regardless of when damages are sustained.
- In tort, the cause of action occurs when all elements are present, duty of care, breach of duty and damage. Sometimes this isn’t clear cut in circumstances where the cause of action only occurs when the claimant sustains damage, which may or may not be the same date as the breach of duty.
It’s also important to highlight that occasionally, a claimant might not be aware that they have suffered damage until after the expiry of the six-year period. To address this, the LA 1980 provides a secondary limitation period. The time limit in these instances is three years from the date the claimant had knowledge of the negligence. The knowledge could be either actual or constructive. (N.B. ‘Constructive knowledge’ means knowledge that you have reasonably been expected to obtain.) When the discovery of the loss was because of negligent advice received from a professional more than 15 years ago (referred to as the 15-year longstop), then the claimant won’t be able to make a claim.
Another potential scenario is when a professional deliberately conceals knowledge that they acted negligently. This applies in situations where the professional committed a deliberate breach of duty in circumstances where it was unlikely to be discovered. The limitation period for this kind of situation is six years from when the claimant discovered the concealment.
What defences might the professional use to challenge my claim?
Some defences a professional might use to challenge your claim include stating that:
- They did not owe you a duty of care.
- No breach occurred, i.e. the standard of care was met towards you.
- There is no causation, i.e. the loss you suffered would’ve occurred regardless of what they did or didn’t do.
- You acted in such a way as to contribute towards your own loss (formally known as contributory negligence).
- You’ve brought the claim outside of the relevant limitation period.
What happens if I lose my claim for professional negligence?
If you lose your claim for professional negligence, there’s a high likelihood that you’ll be ordered to pay the professional’s legal costs for defending the claim, in addition to your own legal fees and disbursements (depending on the terms of your agreement with your legal representatives if you instructed lawyers).
Summary
Because bringing a professional negligence claim can be complex and time-consuming, it’s a good idea to seek help from a professional negligence solicitor as early as possible. Getting things right when it comes to following each step of the relevant protocol is essential, as is ensuring that if bringing a claim is unavoidable, you do so within the correct timeframe. Our solicitors can assist you with all of this, as well as advising on any potential methods of ADR that are either set out in your contract or otherwise suitable for your dispute.
