What is Professional Negligence?
When clients instruct professional advisors, they expect to receive a competent service which meets their needs and objectives. Unfortunately, this is sometimes not the case and clients can receive a sub-standard service where the professional engaged fails to perform their responsibilities to the required standard, or breaches a duty of care. That can result in a loss with serious financial or other consequences. In such circumstances, the professional may have been negligent in their advice or service. It may be that the advice received failed to produce the desired results, that a professional failed to follow instructions, or a professional omitted to advise on key issues that come to light after the event. Professional negligence claims cover a broad range of professional activities including claims against surveyors, valuers, architects and engineers, accountants and other financial advisors, solicitors and barristers and other professionals owing a duty of care.
As a victim of professional negligence you will no doubt have many questions such as: ‘where does this leave me? Do I have a claim? Can I take steps to recover the loss that I have suffered?‘
Proving Professional Negligence
To succeed with a professional negligence claim, it is necessary to establish the following:
- The professional owed a duty of care;
- The professional breached that duty of care by act or omission;
- The breach caused a loss which was foreseeable; and
- There is sufficient nexus between the harm suffered and the subject
matter of the duty of care.
A claim may arise as a result of a contract (the professional having breached their duties in the contract), as a result of a duty of care owed in the tort of negligence (known as a tortious claim), or because a professional has breached a statutory provision. It may be possible to bring a claim based on a combination of contract and tort.
Generally, the standard of care required for a professional negligence claim is that of ‘reasonable skill and care’. However, the scope of the duty assumed by the professional has a bearing on the level of care that can be expected. It is therefore necessary to consider what was agreed between the parties, including whether there was anything which the professional excluded from their service, to determine what was reasonable in the circumstances.
In determining whether the professional caused the loss (or contributed to the loss), it is necessary to review the facts and consider the question ‘but for the professional’s conduct, act or omission, would the claimant have sustained the loss?‘.
A professional’s liability is subject to a test of remoteness. It is necessary to determine whether the damage suffered was reasonably foreseeable so that the professional can be held accountable. If the loss is a natural consequence of the professional’s action or inaction the loss will be generally be recoverable.
Time limits
Anyone considering bringing a professional negligence claim should have in mind that there are time limits for doing so. Time limits differ depending on whether a claim is brought in contract or in tort. Calculating the date for limitation for professional negligence claims is rarely straightforward and it is sometimes necessary to issue protective proceedings if limitation is soon to expire so as to protect a claiming party’s position. There are three professional negligence limitation periods: primary limitation, secondary limitation and the ‘longstop’ limitation period. The primary limitation period is 6 years. The secondary limitation period runs from the date that you become aware of the negligence and may be used in circumstances where you did not have knowledge of certain key facts at the time of the act or omission. Save in cases of deliberate concealment of certain facts or fraud by the negligent party, the ‘longstop date’ is an overriding time limit of 15 years from the date of the act or omission.
It is possible to reach an agreement to suspend the running of time and this is often done in circumstances where limitation is approaching to allow a party to investigate and formulate its claim and to allow the professional to respond to the allegations made against them.
A party bringing a professional negligence claim is expected to comply with the Pre-Action Protocol for Professional Negligence (“the Protocol”) which sets out a code of good practice and the steps that parties should take. The Protocol provides that a party should act promptly after deciding there is a reasonable chance that they will bring a claim against a professional by notifying the professional in writing.
How can Wedlake Bell assist?
Wedlake Bell is able to provide expert assistance, provide in depth knowledge, guidance and advice in respect of professional negligence claims. Our team works with companies and individuals in an efficient, strategic, flexible and collaborative manner to achieve a client’s commercial and strategic objectives. We have wide experience in professional negligence claims including against:
- Accountants;
- Solicitors;
- Financial advisors; and
- Property (such as surveying) or construction professionals.
We can provide you with strategic advice throughout the life of the claim to enable you to make informed decisions. Due to the existence of professional indemnity insurance taken out by the professionals, there may also be further funding options for a claim such as risk sharing or “no win no fee” arrangements – easing the pressure on client cash flow.