Professional negligence claims: the core elements

Businesses and individuals regularly instruct professionals such as solicitors and accountants to advise and represent their commercial and personal interests and expect that such services are delivered competently.  So when things go wrong, it is not unreasonable to want to hold the professional to account.

Whilst a professional may have done something wrong, it does not follow, as a matter of course, that this would lead to a successful claim for professional negligence and there are core elements that a party would need to satisfy to succeed in such a claim which we set out below.

Duty of care

A party must first show that they were owed a duty of care by the professional in question.  In simple terms, a duty of care can be shown to exist where a party engages the professional to provide specific services to them such as financial advice, assistance with the purchase of a home or representing them in court proceedings.

Breach of duty

Once a party has established that they were owed a duty of care, they must then show that the professional breached that duty.  Professionals are to provide their services with reasonable care and skill and when considering whether there has been a breach of duty, one needs to look at the standard that would be expected of a reasonable competent member of that profession (“standard of care”).  Breach of duty is established if it can be shown that the services provided by the professional in question fell below the standard of care.

Causation

Even if it can be established that the professional owed a duty of care and breached that duty, the wronged party (i.e. the one that received the services), must have suffered loss as a result of the professional’s breach.  If the party did not suffer loss, then a claim in professional negligence will not succeed.  Even if a party did suffer loss, this must have been as a result of the alleged negligence and so, for example, if the loss suffered was one that would have occurred in any event (with or without any breach of duty) then it cannot be said that the breach of duty caused the loss and a professional negligence claim will not succeed.

Recoverability

Finally, the loss suffered by a party must be a foreseeable consequence of the professional’s breach of duty and cannot be too 'remote'.  When considering whether the loss is remote, the Court will have regard to (i) whether the loss was one which arose naturally from the breach or (ii) was one which would have reasonably been in contemplation of the parties at the time the professional’s services were engaged.  If the loss falls between one of the two categories above, then it will be recoverable and not classed as remote.

If the above can be satisfied, then a party would have a solid foundation for asserting a professional negligence claim.