If you have suffered loss as a result of negligent advice from a professional, our team of experts can help. We successfully recover damages form a range of professional advisers, from solicitors to surveyors. Contact our friendly team today.
Where a trusted adviser makes a mistake which causes you loss, you have the option to pursue a professional negligence claim against your adviser. This can often feel like a daunting prospect given the need to appoint a new adviser, address the practical issues such as obtaining your file from the original adviser and assessing the likely costs of pursuing your professional negligence claim.
At Francis Wilks & Jones we have considerable experience in helping clients to navigate the steps required to pursue claims against negligent advisers. Whether the adviser was a solicitor, barrister, licensed conveyancer, accountant, financial adviser or surveyor, if you have suffered loss as a result of negligence, our team are here to help.
Grounds for pursuing a claim
When dissatisfied regarding an adviser’s service, you will need to establish whether you have grounds for pursuing a professional negligence claim. To pursue a professional negligence claim, you will need to show that:
- the adviser owed you a duty of care and failed to perform their responsibilities to the required standard. You may demonstrate this by showing that the adviser breached a term of their contract with you or by breaching a tortious, fiduciary or statutory duty owed to you
- as a result of the adviser failing to perform to the required standard, you suffered loss
- you took reasonable steps to mitigate your losses
- the adviser has not reasonably and lawfully excluded liability for the loss suffered
- you are not “out of time” for pursuing your claim under the Limitation Act 1980
Duty of care and breach
An adviser will normally owe a duty of care to you under a contract. The terms of this contract are often recorded in a retainer letter or terms and conditions. The starting point will always be to check what was sent to you at the outset of your adviser’s instruction. An adviser may also owe you a duty of care in tort. As a general rule, professionals are assumed to have responsibility to their clients and so often owe clients a duty of care in both contract and tort.
- you will need to show that your adviser has breached a specific duty of care and that you have suffered loss as a direct result of this breach. It will often be necessary to appoint an expert to show that another practitioner would not have acted in the way your adviser did
- the expert will consider what is standard practice in the profession, any applicable codes of conduct and other regulatory obligations on the adviser
Our team will work with you to identify a suitable expert to prepare a report that addresses the key issues necessary to determine the claim and which meets the requirements of Rule 35 of the Civil Procedure Rules, where necessary.
Causation and loss
Where an adviser acts negligently but their actions do not cause loss, your claim will fail. It is not always easy to identify whether a specific act of negligence has in fact caused loss. If the loss would have happened, regardless of the adviser’s negligent act, then the breach will not have caused the loss.
The court will look at both factual causation and legal causation / remoteness. In the majority of cases, when considering factual causation, the court will consider the “but for” test. i.e. comparing what your position is with what it would have been had the negligent act not occurred. If the comparison reveals that you suffered loss because of the negligent act, you will be able to establish factual causation.
To establish legal causation, you will need to show that the negligent act was the legal cause of the loss suffered. The test for legal causation / remoteness differs depending on whether you are alleging a breach of contractual or tortious duty.
The court will consider evidence regarding loss suffered as a result of a negligent act. Depending on the circumstances, this may be done simply by a review of documentary evidence, for example, invoices and bank statements. In other cases, it may be that expert evidence is required to help the court determine what loss was caused by the negligence.
When considering loss, the court will also consider:
- whether your actions contributed to the loss suffered (contributory negligence)
- whether you took reasonable steps to mitigate your loss
- whether there are valid exclusion clauses incorporated in to the contract that negate your claim
- whether there are valid limitation of liability clauses incorporated in to the contract that limit the damages available to you
A failure to take reasonable steps to mitigate losses following a negligent act, will have a material impact on the financial recovery available from your adviser. Where you are unsure what constitutes reasonable steps to mitigate losses, early advice is key to reduce the risk of a successful defence on the grounds of failure to mitigate.
While a professional cannot exclude or limit their liability for death or personal injury, they can exclude or limit their liability resulting from negligence. To be effective, the clause must have been properly incorporated in to the contract (brought to your attention before the contract commenced) and it must be reasonable. Where an adviser is looking to defend a claim on the basis of an exclusion clause or limitation of liability clause, it will be necessary for you to identify whether the clause was brought to your attention prior to the contract commencing and whether it is reasonable. You will need to take early advice regarding whether the Court is likely to regard an exclusion or limitation of liability clause as being enforceable because this will materially impact the approach to be adopted by you.
The limitation period (the period in which you can bring your claim) can differ materially depending on whether a claim is based on a breach of contract or a breach of tortious duty. You will be time barred from pursuing your claim after the limitation period has expired.
In some cases, where a contractual claim is time barred, it will still be possible to pursue a claim for breach of a tortious duty.
Early advice should be taken on a proposed negligence claim so you can be clear of the limitation period that applies to your claim.
At Francis Wilks & Jones, we have considerable experience in advising clients in relation to professional negligence claims. Contact our friendly team today for the expert help you need.