Professional Negligence

Professional negligence is a claim against a professional either by way of breach of contract or a breach of duty in negligence. The breach must also be causative of the loss claimed. Put simply if a professional fails to act to a standard that other professionals in that profession should act and loss results cause a loss of results then there may be a claim for professional negligence.

A claim can be brought against any professional. A professional is an individual or a firm who hold themselves out as having expertise and skill in the services they provide. Professional negligence claims are most commonly made against the following professionals:

• Solicitors
• Barristers
• Financial advisers
• Licenced conveyancers
• Accountants
• Valuers
• IFAs
• Surveyors
• Architects
• Builders
• Tax consultants

Proceedings for professional negligence claims must be brought within specific time limits, otherwise the claim will be out of time and unable to be brought. The limitation period is 6 years from the accrual initial of the cause of action. This can be based on breach of contract or the date when damage occurred (for negligence in tort). However, it should be noted that the law in relation to limitation and when time limits begin to run is complex and often involves the consideration of many different factors. Also, if six years have passed since the date of negligence but a claimant has only just discovered the facts that may give rise to the claim, then the limitation period may be extended to three years from the date of knowledge of the material facts.

To have a successful claim for professional negligence a claimant must satisfy three basic requirements proved on the civil standard of balance of probabilities:

• A duty of care was owed by the professional, often referred to as the scope of duty
• The professional breached this duty, often referred to as breach of duty
• The breach of duty caused a loss, often referred to as causation and loss

The Courts expect the parties to follow the relevant Preaction Protocol. There are different Protocols depending on the type of professional involved, The Protocols lay down a framework for how the parties should interact with each other before any Court proceedings are issued. Failure to adhere to the Protocols can result in sanctions from the Court.

The aim of the Court is to put the claimant back into the position they would have been in had the breach by the professional not have occurred, Damages are generally assessed from the date of the breach and interest can also be claimed.

The vast majority of claims do not go all the way through to a final hearing. Most claims settle with a large number settling even before claims are issued at court. Settlement can be achieved in a variety of ways and Alternative Dispute Resolution (ADR) is encouraged by the Courts and unreasonable refusal to engage in ADR can be penalised by the court when it comes to the decisions on costs. ADR is a way of the parties negotiating settlement or a narrowing of the issues without going to court. It can take a number of forms including Arbitration, mediation adjudication and expert determination.

We do not conduct these types of claims on a conditional fee basis otherwise known as a no win no fee. However subject to the strength of the case we are prepared to carry out the work on a discounted conditional fee agreement. With a discounted conditional fee agreement, you pay 50% of our fees on an ongoing basis. If you are successful, the balance of our fees together with a small success fee is payable. If your claim is unsuccessful, you only pay the discounted rate. We believe that this type of arrangement works very well and ensures that both parties are fully invested in the claim and its success. See here for our costs.