What is Professional Negligence? Everything you Need to Know.

For many, instructing a professional is of the utmost importance. You’ll likely conduct hours of research to find a capable professional and eliminate the risk of having to deal with professional negligence.

Quite often, a professional will deliver a service that meets or exceeds the level expected by someone in their field. however, there are occasions where that is not the case. In cases where an ‘expert’ has underperformed, you may have a professional negligence claim.

As professionals ourselves, it would be negligent for us to leave this topic unsaid. As a result, it falls to us to publish an article explaining professional negligence.

If you need help with professional negligence, either send us an email via [email protected] or call us directly on 0203 007 5500.

What is professional negligence?

Professional negligence is where a professional breaches a duty owed to you by failing to meet the standard of care and skill reasonably expected in the circumstances, causing you loss.

Professionals are instructed because they have specialist knowledge or expertise. This can include solicitors, accountants, surveyors, architects and other advisers. The standard expected of them will depend on the work they were instructed to carry out and the circumstances in which they were acting.

Importantly, professional negligence is not simply poor service or a mistake. A professional can make an error, provide a service you are unhappy with or achieve an unfavourable outcome without necessarily being legally negligent.

What do you need to prove in a professional negligence claim?

Duty of care

The first step is establishing the duties the professional owed you.

Professional relationships commonly involve contractual obligations and can also give rise to duties in tort. The extent of those duties will depend on the relationship between the parties and the work the professional agreed or undertook to perform.

The original contract, engagement letter or terms of business can therefore be an important starting point when assessing a claim.

Breach of duty

You will then need to show that the professional failed to meet the appropriate standard.

The fact that another professional might have approached the situation differently does not automatically mean negligence occurred. Nor does an unfavourable outcome necessarily indicate that the professional did something wrong.

The question is whether their conduct fell below the standard of care and skill reasonably expected in the circumstances. Depending on the nature of the dispute, expert evidence may be needed to establish what a reasonably competent professional should have done.

Causation and loss

Proving that the professional made a mistake is only part of the claim. You must also establish that their breach caused the loss you are seeking to recover.

For example, if an accountant provides incorrect tax advice, it may be necessary to consider what would have happened had the correct advice been given. If the same financial loss would have occurred regardless, proving that the advice was wrong may not be enough.

The same issue can arise with negligent legal advice. Where a solicitor’s error causes someone to lose the opportunity to pursue another claim, the merits and potential value of that underlying claim may also become relevant.

Not every consequence of a professional’s mistake will necessarily be recoverable, which is why causation and loss can become important areas of dispute.

Common examples of professional negligence claims.

There is a multitude of examples of professional negligence. Some examples include:

• An accountant giving poor financial advice which causes a client to miss out on certain tax-reliefs and suffer large tax bills.
• A conveyancer missing a crucial piece of information in the purchase of a property which significantly affects its value.
• A medical professional administering the wrong medication to an individual causing severe injury or even death.
• An architect drawing up plans for a residential extension which does not comply with planning permission resulting in the client having to demolish and rebuild their extension.

In these circumstances, an individual can obtain compensation for their losses.

What evidence do you need for a professional negligence claim?

Professional negligence claims can turn heavily on the evidence available. If you think something has gone wrong, it is sensible to preserve documents relating to the professional’s instructions and advice.

Relevant evidence could include:

• contracts or engagement letters;
• terms of business;
• emails, letters and other correspondence;
• reports or written advice;
• meeting notes;
• invoices and payment records;
• subsequent professional advice identifying an error;
• accounts, valuations or other evidence showing your loss; and
• expert evidence, where specialist opinion is required.

A clear chronology can also help establish what information was available to the professional, what advice was given and when the alleged problem arose.

How long do I have to bring a professional negligence claim?

Limitation periods are particularly important in professional negligence claims because a problem may not become apparent until some time after the professional carried out the work.

Under the Limitation Act 1980, claims founded on simple contract or tort are generally subject to a six-year limitation period from the date the relevant cause of action accrued. However, when that period starts can differ depending on the legal basis of the claim.

For certain negligence claims where the relevant facts are discovered later, section 14A can provide an alternative three-year period from the relevant date of knowledge, where this expires later than the ordinary six-year period. The rules around what amounts to knowledge are specific and can include facts a claimant might reasonably have been expected to discover.

There is also an overriding 15-year long-stop period under section 14B for negligence claims within its scope that do not involve personal injury. This generally runs from the relevant act or omission alleged to constitute the negligence.

These time limits are not interchangeable, and establishing when a claim accrued or when the required knowledge arose can be complicated. If the professional’s work took place several years ago, or you have only recently discovered the problem, it is sensible to seek advice promptly.

Professional negligence claims: contract or tort?

Potentially, yes.

A professional may owe contractual obligations to their client alongside a duty of care in tort. These duties can exist at the same time, although their scope will not necessarily be identical.

The distinction can matter when considering what duties were owed and when a claim accrued for limitation purposes. A contractual cause of action will ordinarily accrue when the relevant contractual breach occurs, whereas a negligence claim requires actionable damage.

The existence of a contract does not therefore mean that negligence is irrelevant. The appropriate basis of a claim depends on the professional relationship and the circumstances of the alleged wrongdoing.

What compensation can you claim for professional negligence?

Damages in a professional negligence claim are generally intended to compensate for legally recoverable loss rather than punish the professional.

Depending on the circumstances, losses might include:

• direct financial losses;
• reasonable costs incurred putting the problem right;
• additional professional fees;
• wasted expenditure;
• a reduction in the value of property or another asset; or
• consequential financial losses where legally recoverable.

It is not enough simply to put a figure on the consequences of what happened. The claimant must establish that the loss was caused by the relevant breach and falls within the loss for which the professional is legally responsible.

A claimant is also generally expected to take reasonable steps to mitigate their loss once a problem has been identified.

How do you make a professional negligence claim?

For claims within its scope, the Pre-Action Protocol for Professional Negligence sets out the steps parties should generally follow before court proceedings are issued. Its aim is to identify the issues, encourage the early exchange of information and documents, and give the parties an opportunity to resolve the dispute without unnecessary proceedings or cost.

Where there is a reasonable chance that a claim will be made, the Protocol encourages the claimant to send a preliminary notice. Once there are grounds for pursuing the claim, a more detailed Letter of Claim should explain what the professional is alleged to have done wrong, what should have happened instead, how the error caused the loss and how that loss is calculated.

The professional should acknowledge the Letter of Claim within 21 days and, under the Protocol, will generally then have three months from the acknowledgment to investigate and provide a Letter of Response and/or Letter of Settlement, unless an extension is agreed.

Not every case needs to reach court. The Protocol expressly provides for alternative dispute resolution, and the wider rules on pre-action conduct expect parties to consider settlement and suitable forms of ADR before proceedings.

If the dispute cannot be resolved, court proceedings may ultimately be necessary.

How long does a professional negligence claim take?

It’s impossible to say how long a negligence claim will take without knowing any of the details of your specific matter. A straightforward claim where the professional accepts responsibility may be resolved through correspondence or negotiation. A dispute involving complex evidence, substantial losses or expert opinion can take significantly longer, particularly if court proceedings become necessary. Factors that can affect the time a negligence claim takes include the type of negligence claim, the impact the negligence had, and whether the claim sparks a dispute.

Why use a professional negligence solicitor?

When making a professional negligence claim, it’s of vital importance that the case is conducted correctly. Failure to properly manage a negligence claim may result in the rejection of your claim. As a result, instructing a solicitor will ensure the correct handling of your case to increase the chance of your claim being successful.

Several advantages of instructing a solicitor for a professional negligence claim include:

• You can achieve compensation for any loss suffered: The most obvious advantage. Using a solicitor maximises your chances of obtaining compensation. Professional negligence solicitors will be familiar with the process for bringing a claim and therefore, will be able to navigate their way through the claim and improve the chances of successfully obtaining compensation.
• Force the negligent professional to account for their failure. In addition to the above point, instructing a solicitor will maximise the chance of forcing a professional to consider the actions they took or didn’t take and force them to learn from the experience. While it does not change the loss you have suffered, you can be confident that they will not make the same mistake twice. Sometimes a sense of justice can be just as sweet as the compensation.
• Objective view: By instructing a solicitor, you can gain a legal viewpoint of your matter. As you may imagine, professional negligence often flares emotion due to the loss suffered, and therefore a solicitor can assist by keeping you relaxed and ‘on point’ in the claim.