Professional negligence: your loss or theirs?
By Daniel Russell
If some things were easy, we’d do them ourselves.
As it is, and regardless of how capable we might think we are, there are times in life when things are best left to professionals with the knowledge and expertise that come from years of training and experience.
You might have been a dab hand with a pencil and graphite at school, but only a fool would believe that qualified them to draw up plans for someone’s extension. Neither does buying fifty quid’s worth of Premium Bonds give you the necessary insight to give financial advice to your friends.
When professionals advise clients, they do it on a mutual understanding that the advice they give is sound and that they have the best interests of the client at heart.
But whilst we take these things to some extent on trust, perhaps backed by a personal recommendation or some element of research, the knowledge, expertise, experience and good intentions we take for granted don’t in themselves guarantee the advice we receive is right.
And the thing about professional advice is that when it goes wrong it can have serious financial implications.
But what happens when you find yourself in a position where you think you’ve been given bad professional advice and you’re convinced that you’ve suffered a financial loss as a direct result?
It’s perhaps obvious to say that trying to come to a mutually acceptable resolution is likely to prove the least stressful and most constructive approach, but unless there’s a clear case for the adviser in question to answer there’s a good chance finding someone to represent your interests is likely to be the most efficient route to a fair outcome.
Proving negligence is understandably challenging: the tests that need to be met and passed are there to ensure fairness to both parties – and they’re necessarily stringent in order to discourage spurious or malicious claims. And that can be daunting – and, if not handled well, expensive.
Engaging the services of a solicitor who specialises in negligence cases is a good first step and it’s sensible to choose a legal practice which has a commitment to using dispute resolution to achieve the right outcome: litigation can eat up both time and money, and even in a case where you might have tried and failed to reach agreement with the other party, a skilled solicitor may be able to make progress through expert negotiation.
Your solicitor will help you to establish whether you have a legitimate complaint and should also be able to advise you, based on the information available to them, on the merits of proceeding with the case and the best approach to take.
Before you even start to think about going to law, it’s important to understand the definition of professional negligence and the tests a court will require you to pass in order to rule in your favour, should the complaint go that far.
Negligence occurs when a professional person fails to carry out their responsibilities to the level required of a reasonably competent person in their profession.
Beyond that, there are four key tests against which need to be established and against which any negligence case will be measured.
Duty of care
The law requires professional advisers to exhibit a level of duty of care to the client. This means a client should be made aware of all the information they need in order to make an informed choice or decision. Depending on the type of advice being sought, this means identifying and explaining the risks associated with following the advice as well as the benefits.
Breach of duty
To establish negligence, one of the elements you will need to demonstrate is that the advice and service you received from the individual in question fell below the standards required of a reasonably competent individual working in that field. There’s an important distinction here, in that it’s not enough for the adviser to have simply made a mistake – rather, it must be a mistake that most reasonably qualified professionals in that area of specialism would not be expected to make.
You will need to demonstrate that the financial loss (or losses) you suffered was a direct result of the advice you received. If it can reasonably be shown that you would have suffered the same or similar losses regardless of the advice you were given, then a claim of professional negligence is unlikely to be upheld.
Any loss you prove to have suffered must have been reasonably foreseeable. In other words, you will need to prove that it would have been reasonable for the other party to have foreseen the potential loss at the time the advice was given – and then to have advised you of that potential risk.
Beyond these four key elements, you and your solicitor will also need to consider whether the other party might have a legitimate claim that you either contributed in some way to the loss you have suffered or that you didn’t take reasonable steps to protect yourself from suffering that loss.
By and large, you have six years in which to file a claim of professional negligence, unless you either didn’t know until a later date that you had suffered a loss or didn’t know the loss you suffered was a direct result of the advice you received until after the advice was given.
Whatever the circumstances, there’s an absolute deadline of 15 years to bring a claim of professional negligence, which means that if you suddenly discover possible negligence 13 years after you received the advice in question, you’ll only have two years in which to raise a claim.
Most important of all, before you set off down the road of bringing a professional negligence claim, you’ll do yourself a favour to make sure you have a very clear understanding of what the process will entail, and your solicitor will be able to explain this to you.
It’s rare for these cases to be resolved quickly and being well-prepared will save you a lot of stress and anxiety in the long run.