Professional Negligence Claims: Simple answers to your questions

Making a professional negligence claim can seem intimidating. However, once you find a good solicitor to help you, cases can be settled with the minimum of fuss, and often without going to court.

This is a brief guide to professional negligence claims in the jurisdiction of England & Wales. It is not a substitute for legal advice – each situation is unique, and there is not a ‘one size fits all’ approach.

What is professional negligence?Professional negligence is when a professional that you have engaged to provide a service fails to perform their responsibilities adequately, breaching their duty of care, and when this leads to a loss to their client or customer. The loss could be:

• Actual financial loss
• A loss in value of something
• A lost opportunity

What kind of professionals can be negligent?Professional negligence applies to anyone who has ‘expertise’ in the services they provide. This can be:

• Financial professionals (e.g. accountants, financial advisors, and insurance brokers).
• Legal professionals (e.g. barristers and solicitors). 
• Property professionals (e.g. an architect, estate agent or surveyor).

Examples of professional negligence. 

• An accountant missing a tax deadline, which leads to you being fined by HMRC.
• A surveyor missing a defect in a property, which leads to you buying a house that needs far more work than you bargained for.
• A solicitor missing a deadline in a court case they are handling for you.

What counts as professional negligence?

Not every case of inadequate or poor service is professional negligence. A solicitor will help you find this out, but for a quick idea you can run through these three checks:

• Was I owed a duty of care?

A duty of care is a legal obligation to avoid acting in a way that could reasonably be predicted to cause harm.

Usually, you can prove you are owed a duty of care through having a written contract or terms and conditions with the professional, or some other written confirmation that you were their customer/client.

• Was there a breach in the duty of care?

To prove that the duty of care was breached, you must be able to show that the professional acted in a way that was below the standards of a reasonably competent professional in the same field

• Was my loss caused by the breach?

If you can show that a professional owed a duty of care and that they breached it, you must then prove that their breach directly caused your loss.

Claiming for professional negligence.

• How long do I have?

Usually, the time limit for claiming is six years from the event or loss, or knowledge that the negligent action has caused a loss. This might be extended if the negligence or loss did not become obvious for a while afterwards.

• How much could I claim?

Damages are usually calculated with the following in mind. 

1. The damages should put you in the financial position you would have been in if the professional had not breached the duty of care.
2. Damages must reflect the loss caused directly by the negligence.
3. They may be reduced if the professional proves that you did not take steps to mitigate your loss.

Sometimes the amount of the loss is obvious – such as a fine, or cost of property repairs – but in other cases, more complex things like ‘loss of opportunity’ may need to be valued.

• How do I make a claim?

If you think you might have a claim, you should make an appointment with a lawyer who specialises in professional negligence claims, such as Pinney Talfourd. They will be able to tell you if your case is likely to succeed and, if it is, guide you through the steps you need to take.

• What is the process?

First, a Letter of Claim must be sent to the negligent professional. The letter is sent under what is called the Pre-Action Protocol for Professional Negligence.

Letter of Claim:
The letter will set out:

• The allegations against the professional.
• The facts that you are basing the allegations on.
• The legal argument for claiming.
• The losses you are claiming.
• Evidence supporting the claim (e.g. contracts)

The professional has to acknowledge the letter within 21 days of getting it. They then have three months to investigate the claim and send back a Letter of Response.

Letter of Response:

The Letter of Response will either admit the claim – in which case it will also include proposals for settling the matter, such as the amount of damages – or dispute the claim. 

If settlement cannot be reached at this point, the claim may escalate to issuing proceedings in court.

Going to Court:

If the matter cannot be settled at the pre-action stage, then it may be necessary to take the case to court.

Once a claim is issued and a defence filed, the court will set a timetable for the stages of the case up until trial. From issuing a claim to the date of the trial can often be well over a year.

Even after cases have started, they can be settled by negotiation or a more formal process such as mediation. Pinney Talfourd has extensive experience of dealing with mediation using the leading mediators.

Costs and funding.

At the beginning of your claim, we can discuss with you if your case would qualify for third party funding. This means that a “funder” would support the claim financially (so you do not have to) in return for a percentage of the damages you might recover.

What happens if I lose?

The loser of the case generally pays the winner’s legal fees, as well as their own. 

However, you can get a special kind of insurance called After the Event insurance (ATE) to cover you for this potential loss. Pinney Talfourd work with some of the leading funders and ATE providers in the legal marketplace. Please ask for more details.

Conclusion

Remember, all professional negligence cases are different. This guide is a brief overview – it in no way replaces professional legal advice.

More information

If you have any questions, or would like to discuss your claim with our experts please contact the Commercial Litigation Team who will be able to assist you.

The above is meant to be only advice and is correct as of the time of posting. This article was written by Nick Hatchett, Partner in the Commercial Litigation Team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of September 2020.