Professional Negligence: Making a Claim

We rely on professionals more than ever, particularly for technical, financial, or legal matters that most people would struggle to deal with on their own. As the work that professionals carry out becomes increasingly specialised and complex, it is even more important that they meet the expected standards.

Whether you are buying a home, setting up a business, dealing with your taxes, planning for the future, or going through a legal dispute, you may need expert advice or services. If the advice or service you receive is not up to standard, the results can be serious.

Fortunately, individuals and businesses are now more aware of their rights and more willing to hold professionals to account when things go wrong. The law provides a clear route for pursuing professional negligence claims, so long as certain conditions are met.

What is professional negligence?

Professional negligence happens when someone who is considered an expert in their field fails to carry out their work to the required standard, and as a result, causes harm, loss, or damage to their client. This could involve professionals such as solicitors, accountants, financial advisers, surveyors, architects, or valuers.

When you hire a professional, you place a lot of trust in their expertise. You expect them to give you advice or provide a service that meets a certain standard of care and competence. If they fall short of this standard and you suffer a financial loss or other form of harm as a result, you may have a legal right to bring a claim for professional negligence.

Examples of professional negligence

Professional negligence occurs when the service provided by the professional falls below what would reasonably be expected of someone in that position, working under the same or similar circumstances. In legal terms, the professional must owe a “duty of care” to their client, which means they are legally obligated to act with reasonable care and skill.

If they fail in this duty, and this failure directly causes harm or loss, then the client may be entitled to claim compensation.

Some common examples of professional negligence include:

• A solicitor missing a court deadline, causing your claim to be struck out.
• An accountant giving incorrect tax advice, leading to fines or penalties.
• A financial adviser giving inaccurate financial advice or recommending unsuitable investments, resulting in significant financial loss.
• A surveyor failing to identify major defects in a property during a home survey.
• A valuer providing a significantly inaccurate valuation, affecting your decision to buy or sell a property.

These mistakes can be costly, both financially and emotionally, especially when you have relied on a professional’s advice to make important decisions.

Criteria for making a professional negligence claim

A professional negligence claim can arise from a breach of contract, a statutory duty, or a failure to exercise reasonable care (known as a tortious claim). Most claims involve both contract and tort elements.

To succeed in a claim for professional negligence, you must usually be able to show the following:

Duty of care: You must be able to show the professional owed you a duty of care. This is usually straightforward; if you were their client, the duty exists.

Breach of duty: The professional must have failed to meet the standard of care expected. This is judged based on what a reasonable person in that profession would have done in similar circumstances.

Causation: You must be able to show that their mistake or failure directly caused you to suffer harm or financial loss. If your losses would have occurred anyway, even if the professional had acted properly, you may not have a valid claim.

Loss or damage: You must be able to demonstrate that you suffered a quantifiable loss as a result of the professional’s error.

Time limits for making a claim

Time limits for bringing a professional negligence claim are strict, although there are some exceptions. Generally, you have:

• Six years from the date the breach of contract occurred; or
• Six years from the date you suffered loss due to the professional’s negligence.

If your claim is based on negligence (a tortious claim), you may also have up to three years from the date you became aware (or should reasonably have become aware) of the damage and the possible negligence.

However, there is an overall long-stop limit of 15 years from the date of the negligent act. This means that even if you only discovered the issue later, you cannot bring a claim after 15 years have passed. After this point, the claim is likely to be statute-barred (out of time).

The process of making a professional negligence claim

Professional negligence claims are subject to a Pre-Action Protocol. This is a set of guidelines designed to help resolve disputes without going to court. This process involves:

• Preliminary Notice: You notify the professional of your intention to claim.
• Letter of Claim: This is a detailed formal letter setting out your allegations, the facts of the case, the losses you have suffered, and the remedy you are seeking.
• Letter of Acknowledgement: The professional (or their insurer/solicitor) must acknowledge receipt within 21 days.
• Investigation Period: The defendant has up to three months to investigate and respond with a Letter of Response (which may admit or deny liability) and/or a Letter of Settlement (an offer to resolve the matter).

This stage is crucial and can often lead to settlement without the need for court proceedings.

At any stage, both sides can negotiate a settlement. If the professional accepts liability, they may offer to pay compensation or propose mediation.

Alternative dispute resolution (ADR) methods such as mediation or early neutral evaluation may be suggested. These are less formal than court proceedings and can save time and legal costs.

If the case isn’t resolved through the pre-action protocol or ADR, your solicitor may recommend issuing formal court proceedings.

How much compensation could you be entitled to?

The amount you can claim depends on the specific loss you’ve suffered. Compensation is intended to put you in the position you would have been in if the professional had not breached their duty. If the loss would have occurred anyway, regardless of the negligence, you may not be entitled to damages. It’s also important to try to minimise your losses where possible, as failing to do so may reduce the amount you can recover.

How can our professional negligence solicitors assist?

Making a professional negligence claim can feel daunting, especially if you’re unsure whether you have a valid case or what steps to take. Our experienced dispute resolution team is here to help you understand your legal position and advise you on the best way forward.

We will:

• Review your case and assess whether you have a strong claim.
• Help you gather evidence, expert evidence and documentation to support your case.
• Apply the Professional Negligence Pre-Action Protocol to help resolve your dispute before it goes to court.
• Advise you on the likely outcome of your case, based on our knowledge and experience.
• Discuss potential funding options, including legal expenses insurance, or other methods that can help manage the cost and risk of bringing a claim.
• Represent you in negotiations or, if necessary, in court proceedings.

Our aim is always to resolve claims in a cost-effective and efficient way. Many cases settle out of court, which can help reduce stress and expense.

To discuss your professional negligence issue please contact a member of our team on 01204 920 103. Alternatively, you can send an email with your name, contact information and brief details as to the nature of your issue to disputeresolution@afglaw.co.uk and one of our team will be able to help you.