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Professional negligence
The quality of professional services and advice can vary tremendously. Whilst most minor errors or omissions are unlikely to have major consequences, on occasion a professional’s negligence can cause a client serious financial loss.
Professional negligence can occur in any field where a duty of care exists between a professional/expert and a client. Examples of professionals who may face such claims are accountants/tax advisers, financial advisers, architects, surveyors, conveyancers and solicitors (click here to read more about claims against solicitors and barristers).
Negligence can manifest in procedural oversights. It can also be more substantive, such as giving the wrong advice. Either can result in a client suffering financial loss.
Our civil and commercial litigation solicitors have extensive experience of pursuing professional negligence claims. Below we answer some of the most frequently asked questions.
What is a professional negligence claim?
It is a civil claim for compensation arising from a negligent act or omission by the professional that has caused a client to suffer loss. It is a sub-species of ‘negligence’. Negligence is a ‘tort’: a civil wrong.
When is a professional liable for negligence?
A professional adviser will normally owe you a duty of care to provide services with reasonable care and skill. If these standards are not met, they are said to have breached that duty. A claim for negligence may be established if you can prove that you suffered loss as a consequence, and that it was a ‘reasonably foreseeable’ result of the negligence.
What losses can be recovered?
Losses must be a direct result of the negligence (i.e. they would not otherwise have occurred) and reasonably foreseeable. It is for a claimant to prove, on evidence, that the negligence has caused them actual loss; the court will not entertain speculative assertions of loss that may have occurred anyway.
Can I recover damages for distress, inconvenience and upset arising from negligence?
Not normally. Loss should normally be financial (or quantifiable in such a way).
What is a duty to mitigate loss?
A claimant in a professional negligence claim has a duty to mitigate loss. This means that they must try to take steps to limit their loss after a negligent act/omission. If they fail to do this, they may be unable to recover damages for losses which could have been avoided had reasonable steps been taken to limit the same.
Are professional negligence claims worth pursuing?
A good claim is often worth pursuing if the professional has insurance to cover such claims (many professionals are obliged by law to have professional indemnity insurance in place). Thus, if a claim is meritorious, there is a good prospect that the professional will seek to settle it at an early stage. Equally, if the claim is successful, there is likely to be a good prospect of claimants recovering their losses and the majority of their legal costs. That is not to say that such claims are not defended, at least initially, and weak claims are likely to be robustly defended.
How long do I have to bring a negligence claim?
After a certain period of time, a negligence claim will become ‘time-barred’ or ‘statute-barred’. This is normally an absolute defence to a claim. This is called ‘limitation’. The primary limitation period in negligence claims is six years from the date of the negligence. A potentially longer secondary limitation period may apply: three years from the date of discovery of the negligence – or the date it ought to have been discovered. In practice it can often be difficult relying on the secondary period as the court may decide you ought to have discovered the negligence sooner. There is a ‘long-stop’ limitation period of 15 years.
The law of limitation is complicated and you should seek legal advice as soon as you believe you may have suffered loss as a result of negligence.
I have not suffered any loss, but am dissatisfied with a professional and believe that their service was poor. Do I have any remedy?
You may be able to make a complaint to their regulator and/or an ombudsman service. Depending on the profession, these offices may have the power to award compensation for distress and inconvenience (as well as for rectifying errors and the cost of remedial action). If the fees you have been charged are unreasonable, then we may be able to help you challenge them.
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How do I instruct Brett Wilson?
The first step is to attend a preliminary consultation. At the consultation we will advise you on the strength of your case, talk through the relevant practical and legal issues, and set out your options. We will review relevant documentation ahead of the consultation. The consultation will help you understand your position and allow you to make an informed decision about what action to take.
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Consultations take place in our London offices or by Teams/Zoom/telephone. We can also travel to you.
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To request a consultation please send us an email, complete our online enquiry form or call us on 020 7183 8950.
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Details of the cost of a consultation will be provided following your enquiry.
We regret that we are unable to review your case, consider papers or provide advice prior to a consultation or without being formally instructed. We do not offer alternative funding arrangements.
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