Professional Negligence

1. What is professional negligence?

The law of professional negligence deals with claims made by individuals or companies against a professional who has failed to perform their responsibilities to a required standard. They could have given you bad advice or not done something that they were instructed to do.

Claims of professional negligence against professionals have increased in recent years, due to the fact that people are becoming more aware of their legal rights and remedies and the fact that more and more people are now seeking advice from professionals in many different areas of their personal or business life. This can include professional negligence by solicitors, professional negligence by accountants, professional negligence by surveyors and professional negligence in the construction industry.
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2. Who can be sued for professional negligence?

There is no exhaustive list to the different types of professionals that you can claim against. However, the most common types of claims in professional negligence are against the following individuals or companies:

  • Professional negligence against Solicitors;
  • Professional negligence by Barristers;
  • Professional negligence against Accountants;
  • Professional negligence by Surveyors;
  • Professional negligence against Architects;
  • Professional negligence by Builders;
  • Professional negligence against Financial advisors;
  • Professional negligence by  Engineers;
  • Professional negligence against IT professionals;
  • Professional negligence by Professional trustees;
  • Professional negligence against Insurance brokers;
  • Professional negligence by Tax consultants.

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3. What duties does a professional owe to me?

When you instruct a professional (be it a solicitor, accountant, surveyor etc.) to provide you with advice, it is likely that you will enter into a number of different legal relationships with that professional.

First, there is likely to exist a contractual relationship between you and the professional. This will be based on the terms and conditions as set out in any agreement between yourself and the professional.

The agreement does not have to be written down, although if it is, it provides better evidence as to the scope of the relationship between you and the professional and evidence as to what the professional was instructed to do, or was not instructed to do on your behalf.
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4. Professional Negligence Pre Action Protocol

As with most monetary or commercial claims, parties are obliged to try and settle their professional negligence claims without the need to issue a formal proceedings in the County Court or High Court.

Although the rules governing professional negligence claims are the same as any other claim in the County Court or High Court, the Civil Procedure Rules also contain a Professional Negligence Pre Action Protocol, which parties are required to follow before issuing a formal claim at court.
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5. Can I still make a claim if the professional is insolvent or has limited assets?

We are often asked if you can still make a claim against a professional for negligence even where the professional is insolvent or no longer trading. For example, if a solicitors practice has closed can you still make a claim?

The answer is possibly.

Most professionals will have (and some professions are obliged to have), professional indemnity insurance (PII). This is an insurance policy they are required to take out which will pay out damages in the event that they are found to be negligent.
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6. Professional negligence limitation period

There is not an endless time period to make a professional negligence claim and it is important that you make your professional negligence claim (by issuing court proceedings) within the correct time period, as otherwise, the professional will have a strong argument to say that you have issued out of time and your claim is “statute barred”.

For most professional negligence claims against a professional (be it a claim for breach of contract or a claim in negligence), the limitation period for bringing a claim is six years from the date of the breach or negligence.
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7. What is contributory negligence in a professional negligence claim?

We are often asked by clients “what is contributory negligence?” in relation to a professional negligence action.

In claims for professional negligence, the professional may argue that you have contributed in some way to the losses that have been suffered and as a result of this, any damages that you are awarded should be reduced in proportion with the level of blame that can be attached to you.
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8. Professional negligence how long does it take?

Generally professional negligence claims can take a number of months, sometime years to resolve. They are normally fairly complex claims, which are often defended by the professional (or their professional indemnity insurers), but can often be resolved by way of negotiation or mediation as opposed to having to go to a full county court hearing.

The Professional Negligence Pre Action Protocol encourages parties to exchange as much relevant information as possible with each other at an early stage and if the parties adhere to the Professional Negligence Pre Action Protocol, it can often mean that claims will settle at an early stage.
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9. Professional negligence claims against solicitors

Probably the most common type of professional negligence claims are claims against solicitors.

Professional negligence claims against solicitors could be for a number of reasons, including:

  • Failure to advise properly in relation to a transaction
  • Missing an important limitation deadline
  • Drafting a Will incorrectly and not in accordance with the testator’s instructions.
  • Failing to advise properly in relation to a property transaction
  • Drafting a document incorrectly leading to a client suffering financial losses.

If you are unhappy about the service you have received or feel that your solicitor failed in their duty to properly advise you about a certain aspect of your case, then you may have a professional negligence claim against them if you have suffered a loss as a result of their advice or lack of advice.
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10. What is negligence?

We are often asked by clients what is negligence?

Negligence is a ‘tort’, meaning a civil wrong. In essence, it is the failure in the duty to take reasonable care.

This can arise on many occasions in everyday life. For example, if a plumber is providing services to you, there is an implied term that plumber will provide those services with reasonable care and skill. Similarly, if you hire a taxi, then there is an implied duty that the taxi driver will drive the taxi with reasonable care and skill so to avoid being involved in an accident.

Similarly, you will often find terms in contracts that oblige the parties to carry out their obligations under the contract with reasonable care and skill or to some other standard.
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11. Professional negligence claims against accountants

If you are an individual or company who is dissatisfied with your accountant and suffered a loss as a result of their poor service or bad advice, then you may have a claim against that firm of accountant for professional negligence.

Bringing a claim against an accountant can be quite complex, but at Francis Wilks & Jones, we have the expertise to understand these claims and advise you of the best approach.

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12. Professional negligence claims against surveyors

Individuals and companies use the services of surveyors for many reasons. The most common reason is probably when you buy a house. Your bank or mortgage lender will often insist that you obtain a valuation to ensure they are getting adequate security for the money they are lending. If a surveyor subsequently carries out a negligent valuation, for example, seriously over-valuing the property, then a claim in professional negligence may exist.

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13. Professional negligence claims against architects

Companies and individuals employ the services of architects to deal with many issues surrounding both residential and commercial properties. If you employ the services of an architect, you are entitled to expect a professional service and the advice they give to you to be accurate and correct. If you receive negligent advice form an architect you have employed and as a result of the advice you have been given, suffer a loss, you may have a claim against the architect for professional negligence.

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14. Preliminary Notice of Claim – Professional Negligence

If a person wishes to commence a claim in professional negligence, then parties are obliged to follow the Professional Negligence Pre-Action Protocol.

Failure to follow the Professional Negligence Pre-Action Protocol can lead to sanctions against the party that failed to follow it (usually in the form of costs).

The first stage of the Professional Negligence Pre-Action Protocol is for the claimant to send a Preliminary Notice of Claim.

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15. Letter of Claim – Professional Negligence

Following service of the Preliminary Notice of Claim (which is the first step under the Professional Negligence Pre-Action Protocol), if a claimant decides that they wish to proceed with their claim, they then need to send the professional a formal Letter of Claim.

The Letter of Claim is not a formal pleading, but should set out a detailed summary of the claim against the professional and detail the remedies that the claimant is seeking.

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16. Responding to the Letter of Claim – Professional Negligence

Within 21 days of receipt of a Letter of Claim, the professional should acknowledge receipt of the Letter of Claim to the claimant (or their solicitors). This is known as the Letter of Acknowledgment.

The professional will then have three months to respond to the Letter of Claim by sending a Letter of Response and/or a Letter of Settlement.

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17. Letter of Response – Professional Negligence

If a professional has received a Letter of Claim which complies with the Professional Negligence Pre-Action Protocol, then they only have three months from receipt of that letter of Claim to provide a Letter of Response.

The Professional Negligence Pre-Action Protocol sets out guidelines as to what should be included in the Letter of Response.

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18. Letter of Settlement – Professional Negligence

Either in addition to, or as an alternative to the Letter of Response, the professional may send the claimant a Letter of Settlement, following the end of their investigations into the claimant’s claim against them.

Clearly, if the professional believes that they are responsible for the claimant’s losses and they wish to bring proceedings to an end sooner rather than later (thus saving on legal costs), then they may be inclined to send a Letter of Settlement at an early stage.

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19. Professional Negligence claims – what happens after the Letter of Response/Letter of Settlement?

If a professional sends a Letter of Response denying the clam in its entirety and there is no accompanying Letter of Settlement, then the Professional Negligence Pre-Action Protocol is deemed to come to an end and the claimant may commence court proceedings.

It is however more common for the parties to then engage in further detailed correspondence to see if the issues can be narrowed between them in the hope that this may produce an offer of settlement from the professional.

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20. Professional negligence costs

One of the main factors in deciding whether to bring a claim for professional negligence is whether the claimant can recover his legal costs.

The Letter of Claim is not a formal pleading, but should set out a detailed summary of the claim against the professional and detail the remedies that the claimant is seeking.

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