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Professional Negligence

Our Professional Negligence Solicitors are highly experienced, offering thoughtful solutions to avoid disputes or mitigate risk.

Highly Experienced Team

We are highly experienced in providing excellent advice in this area, having been involved in numerous successful cases. This area of law can be a potential minefield, and we will assist you in getting to the other side.

Professional Negligence Services

You are entitled to expect a certain standard of care from the professionals who advise you. Whether that is a solicitor, accountant, financial adviser, architect or surveyor. Where the professional fails to perform to the standards required of them and you have suffered a financial loss, you may have a claim against them for professional negligence.

Acting early is vital

Acting early is often vital and when you need urgent action, we are quick and decisive. Where strategic input is required, we will offer you pragmatic thoughtful solutions to avoid a dispute or mitigate risk with legal advice that is clear, concise and commercial.

Professional Negligence – FAQ’s

What is professional negligence?

Professional negligence is when a professional has failed to perform their services and responsibilities to the required standard.

This type of claim can be made against many different professionals such as solicitors, accountants, auditors, solicitors, independent financial advisers, surveyors and insurance brokers.

Claims in professional negligence are based on one or more of the following legal causes of action:

• Breach of contract;

• Breach of duty of care in tort of negligence;

• Breach of fiduciary duty; and/or

• Breach of statutory duty.

Establishing negligence alone is not enough to bring a claim. It is crucial to show that the professional’s negligence caused you a loss, generally financial.

What are the elements of professional negligence?

Every professional negligence claim has 3 essential ingredients which must be proved:

1. Duty of Care. The professional owed you a duty of care;

2. Breach of duty. The professional breached the duty owed; and

3. Causation. The loss was caused as a result of that breach and, but for the professional’s negligence, you would not have suffered that loss.

It is vital that all 3 ingredients are established for there to be a viable claim. If one is missing, then a successful claim will not be possible.

Did the professional owe me a duty of care?

It is necessary to establish that there was a relationship that was sufficiently close to establish or impose a legal obligation upon the professional.

A duty of care is usually created once a professional has been formally instructed. The duty and level of service expected is generally specified via the professionals’ terms of business or an engagement letter.

In addition to express contractual terms, professionals are also under a general duty to act with reasonable care and expertise within their chosen industry. There is often an already recognised duty in the case of many professionals.

For example, if you instruct an independent financial adviser in respect of financial products, they may owe a duty of care to ensure that those products are suitable for your needs, and that you understand the risks associated with such products.

There may also be occasions where a professionals’ duty of care extends to third party non-clients.

Has there been a breach of duty?

The test for breach of duty is to show that the professional did not comply with the standard owed.

A professional will be deemed to have breached their duty of care to you if the professional has made an error which no reasonable member of that profession would have made.

This means that a simple error or poor service by the professional does not necessarily mean they have been negligent. For example, a solicitor will only have breached their duty if they fall below the standard of a reasonably competent solicitor.

Did the breach of duty cause my loss?

This is one of the most important, but often overlooked, elements of a professional negligence claim. A professional may have acted negligently, but if his actions or advice did not cause your loss, the claim will not succeed. The courts will look at this very closely.

Often the starting point for establishing causation is the ‘but for’ test, which outlines that the professional will only be responsible for the loss of the claimant if their loss would not have occurred ‘but for’ the negligence of the professional. If the loss would have occurred in any event, then the breach cannot be said to have caused the loss. Usually you will need to show that you relied on the professional’s advice and would have done something different had you been advised correctly.

Other factors may also need to be considered. For example, there may be an intervening act by you or by a third party which ‘breaks the chain of causation’. Similarly, the loss may have a number of causes and it will be necessary to demonstrate that the professional’s negligence was the main cause of the loss in order for the claim to be successful.

What evidence do I need?

As claimant, the burden of proving a negligence claim against the professional will fall to you on the balance of probabilities. i.e. more likely than not. You will need to establish the duty of care, the breach of that duty and that your loss was caused as a result of the breach.

Invariably this will involve obtaining a copy of the professional’s file of papers, including any retainer, terms and conditions, emails, letters or other documentation setting out the arrangements in place with the professional. If there were attendances, you may need to look back to the dates of any meetings which took place and recall of what was discussed and advised at those meetings.

It will also be necessary to collect evidence such as correspondence, documents or photographs showing the loss caused.

Expert evidence is usually required in professional negligence claims. For example, an expert accountant is necessary in a claim against an accountant to give their opinion on the standards of what a reasonably competent accountant should have properly advised.

What is the procedure for bringing a claim?

Once a potential claim has been investigated and it appears to be worthwhile pursuing, you are required to comply with a procedure known as the ‘Professional Negligence Pre-Action Protocol.

The purpose of the Protocol is to ensure an early exchange of information and hopefully a resolution of the dispute without the necessity for proceedings.

The central steps to the Protocol are as follows:

1. Preliminary Notice. As soon as there is a reasonable chance that a claim will be brought, the claimant should notify the professional in writing with a brief outline of the grievance and an indication of the financial value of the claim. The professional should acknowledge this letter within 21 days.

2. Letter of claim. Once the potential claim has been investigated, the claimant should send out a Letter of Claim to the professional. This is a detailed letter setting out the facts upon which the claim is based, the allegations against the professional, how this caused the alleged loss and how the loss is calculated.

The professional should acknowledge receipt of the Letter of Claim within 21 days of receiving it. The professional will then have three months from this date to investigate the claim and respond.

3. Letter of Response. Once the investigations have been completed, the professional or their insurers should send a Letter of Response. The Letter of Response should set out the professional’s answer to the allegations. It should make clear whether the claim, or parts of the claim, are admitted or denied. The professional should identify any further information which is requires of the claimant.

If the claim is denied in its entirety of there is no offer of settlement, it is open for the claimant to commence court proceedings. Usually further correspondence and negotiations will follow between the parties as they are expected and encouraged to consider whether the claim can be resolved out of court.

The Protocol means that the average timescale for resolving a claim can generally take anywhere from 4-10 months from the sending of the Letter of Claim to receiving a Letter of Response and engaging in settlement negotiations.

What losses can I claim?

If a claim succeeds then the negligent professional will be ordered to pay compensation.

The correct measure of loss is linked to issues of causation and can be a complex issue. The aim is to put you in the position you would have been in had the professional negligence not occurred.

For example, if you purchase a property in reliance of a surveyor who overvalues the property, the starting point to calculate the loss is likely to be the overvaluation price paid less the true market value at the time.

You also have a duty to mitigate losses. You cannot recover damages for losses which could have been avoided by taking reasonable steps.

The professional may also seek to argue that you have caused or contributed to the losses suffered. This is referred to as the defence of contributory negligence. That can result in the amount of compensation being reduced to reflect the relative share of blame.

Are there deadlines to bring claim?

There are legal deadlines by which different types of claims must be issued. These deadlines are known as the ‘limitation date’. The usual limitation period in most professional negligence cases is six years from the date on which the negligence occurred.

However, if the negligence only becomes apparent at a later stage, it may be possible to extend this period by three years from the date you acquired knowledge of the facts which might give rise to a claim. This is subject to a 15 year long stop date, which means that if you become aware after 14 years, you would only have 1 year to bring a claim.

Once limitation has expired you will be ‘time-barred’ from bringing a claim and so your claim will be lost forever.

How much will it cost me?

Professional negligence claims can be complex and seem daunting, especially if you’re worried about paying legal costs.
At Herrington Carmichael LLP, we can offer several funding options to give you flexibility in pursuing a claim. Many people tend to search for “no win no fee” but this may not be the best option for your claim.

Some funding examples include:

• Standard hourly rate. Here you will fund the case entirely from your financial resources. Our Terms of Business letter will set out what we believe to be the best estimate of the likely cost of finalising your case and we will tell you if we think that there will have to be a change.

• Conditional Fee Agreement (CFA), more commonly known as a professional negligence “no win, no fee” agreement where a success fee is paid in the event of a win.

You should first always check if you have the benefit of legal expenses insurance (often included as part of household or motor vehicle insurance). This is often referred to as Family Legal Protection.

We will discuss all your funding options with you during our initial assessment of your claim.

What if the professional is insolvent or has limited assets?

We will consider this carefully at the outset as there is little commercial benefit in pursuing a claim against a defendant with limited or no assets. Fortunately, in Professional Negligence claims, a professional is often required by their regulator to have professional indemnity insurance in place to protect against legal claims of this nature.

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    Award winning legal advice

    We are solicitors in Camberley, Wokingham and London. In 2019, Herrington Carmichael won ‘Property Law Firm of the Year’ at the Thames Valley Business Magazines Property Awards, ‘Best Medium Sized Business’ at the Surrey Heath Business Awards and we were named IR Global’s ‘Member of the Year’. We are ranked as a Leading Firm 2020 by Legal 500 and Alistair McArthur is ranked in Chambers 2020.

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