Making a Professional Negligence Claim

All professional advisors owe their clients a “duty of care”. The term “professional advisor” includes solicitors, accountants, architects, surveyors, builders, engineers, financial advisors, insurance brokers and IT professionals. This is not an exhaustive list, but it applies to any organisation or person who offers professional services to the public. A claim may arise when any professional advisor fails to meet the standard required by this duty of care. This is known as “negligence” which is a tort.

What is the “duty of care?”

A duty of care is an obligation to ensure that others do not suffer harm or loss as a result of carelessness or a failure to provide an acceptable level of professional service. For professional advisors, the duty of care is a legal duty requiring that professional to act with a standard of care and skill when dealing with the client’s matter. The standard is judged by the standard that would be expected of a professional advisor of reasonable skill and competence.

The existence of a duty of care is normally evidenced by a written retainer between the professional and the client. However, it can also be inferred from the conduct of the parties. For example, in circumstances where the professional concerned has assumed responsibility for work that the client has asked them to do or for advice which the client relies upon.

What are the essential elements of a professional negligence claim?

Anyone who believes that they have a claim for professional negligence must establish three facts:

1. That the duty of care existed. This is usually very easy to establish by dint of the client being provided services by the professional advisor either under a written retainer or by implication.

2. That the professional advisor in question was in breach of this duty of care. To establish this, the client will have to demonstrate that the service or advice they received was defective in that it fell short of the standards that might be expected from a reasonably competent professional who specialises in that particular service or area of advice. For example, an accountant who holds themselves out as being able to advise clients on matters of, say, personal taxation will be adjudged to have breached their duty of care if they file an incorrect tax return or provide the client with incorrect advice in relation to his or her personal taxes. This is the professional negligence definition.

3. Once a breach of the duty of care has been established, then it can be said that there was professional negligence. However, it is then necessary to show that this negligence caused loss or damage to the client. This is known as “causation”. The law applies a professional negligence test to any claim which is called the “but for” test; but for the professional negligence, would the loss or damage have still occurred? So, for example, in a claim of professional negligence against a surveyor, the client must prove that they only acted as they did based on the negligent advice. If the client would have acted in the same way despite the negligent advice, then the causation is not established, and the claim must fail.

How much can I claim?

Provided all three criteria above have been established, then the claim will likely succeed. However, the compensation awarded to the client by the Court, known as “damages” will vary considerably depending on the circumstances of the case and the amount of loss or damage suffered by the client. Theoretically, there is no limit nor any set amount, and each case will be judged on its own circumstances and merits. Under English law, the basic purpose of damages is “to make the claimant whole” or, in other words, to put the claimant back into the position they should have been in had the professional advisors not been negligent in their advice or actions.

It is extremely important to note that anyone claiming loss or damage as a result of professional negligence takes steps to mitigate their losses. This is to say that the claimant must do everything in their power to minimise or limit that loss or damage. Failure to do so does not invalidate the claim, but it could have a significant impact on the damages awarded by the court, assuming the claim succeeds.

The other factor to bear in mind before making any claim is whether the defendant has any resources with which to pay a damages award and is not insolvent or bankrupt. Most professional advisors are insured but, sadly, this is not always the case and it is something that needs to be investigated before any claim is launched.

Should I instruct a solicitor to act for me in a professional negligence claim?

There is no law which prevents someone from representing themselves, but it is highly inadvisable in professional negligence cases. Professional negligence claims often involve complex matters of law and procedure for which a claimant will need the advice and guidance of suitably experienced solicitors.

For further information and trusted legal advice regarding matters of Professional Negligence in the UK, get in touch with our lawyers in London at Carlsons Solicitors.