Professional negligence

Establishing that a professional got something wrong is usually the easy part. Establishing that it cost you money is the case.

Who these claims are against

Solicitors — missed limitation dates, defective drafting, transactions completed without the protections a client should have had, and advice that was wrong or was never given.

Accountants and tax advisers — schemes that failed, returns prepared negligently, advice on structures that did not achieve what was promised.

Surveyors and valuers — valuations relied on for lending or purchase, and surveys that missed what they should have found.

Financial advisers — unsuitable recommendations and inadequate explanation of risk.

Architects, engineers and construction professionals — design and supervision failures.

Insurance brokers — the cover that was not arranged, or was arranged on terms that did not respond when it mattered.

The four elements

Duty. Usually straightforward where you retained them. Less so where you relied on advice given to someone else — a valuation addressed to a lender, for instance — which turns on whether a duty was assumed to you.

Breach. Judged by the standard of a reasonably competent practitioner in that field at that time. A judgment that turned out badly is not necessarily negligent; the question is whether it was open to a competent professional to make it. Expert evidence is almost always required.

Causation. The element that defeats most claims. It is not enough that there was a breach and that you suffered loss — the breach must have caused it. The question is usually what would have happened if they had done their job properly, which frequently requires proving a hypothetical: that you would have acted differently, that a third party would have agreed different terms, or that the underlying claim would have succeeded.

Loss. Which must be of a kind the duty was intended to protect against, and which is subject to the ordinary rules on remoteness and mitigation.

Loss of a chance

Where the negligence deprived you of the opportunity to do something — most commonly where a solicitor lost a claim by missing a limitation date.

The court does not decide whether the lost claim would have succeeded. It assesses the prospects and awards a proportion of the value. A claim worth £500,000 with a 60% chance of success is valued accordingly.

This makes these claims more viable than clients expect, because you do not have to prove you would certainly have won.

Limitation — the trap

Generally six years from the damage, but professional negligence has its own complications and they matter.

The damage may occur later than the negligent act — sometimes years later, when a defective document is first relied on or a transaction unravels.

There is a secondary limitation period running from when you had the knowledge needed to bring the claim, subject to a long-stop.

Deliberate concealment can postpone the running of time.

The practical point: a claim that looks time-barred frequently is not, and one that looks safe may not be. This is the area where the analysis most repays doing early and properly.

The pre-action protocol

These claims have their own pre-action protocol requiring a letter of claim, a period for the professional to investigate, and a letter of response. It takes months and it is where a good proportion settle — professionals have insurers, and insurers settle meritorious claims.

The letter of claim is the most important document. It frames the claim, it goes to the insurer, and a well-evidenced one produces a different response from a general complaint.

What we do

Assess merits properly — particularly causation, which is where the honest answer often is that the claim will not succeed. Deal with limitation before anything else. Instruct the right expert. Prepare the letter of claim. Negotiate with insurers, which is where most of these resolve.

What it costs

£400 per hour plus VAT with an estimate by stage. Expert fees are additional. Conditional fee arrangements are available for some claims depending on merits and value.

An initial merits and limitation review is a fixed fee, and on this claim in particular it is where the money is best spent.

Questions

Questions people ask us

My solicitor made a mistake. Do I have a claim?

Only if it caused you loss. That is the question that defeats most professional negligence claims — a mistake that made no difference to the outcome is not actionable however careless it was.

They missed my limitation date. What is that worth?

The claim is assessed on the loss of a chance — the court values what you lost by reference to the prospects of the underlying claim. You do not have to prove you would certainly have won.

How long do I have?

Generally six years from the damage, with a secondary period running from knowledge and a long-stop, and with concealment capable of postponing time. Claims that look time-barred frequently are not. Have it checked.

Do I need an expert?

Almost always, to establish the standard and whether it was breached. We will tell you what that costs before instructing anyone.

Will they have insurance?

Most regulated professionals must carry professional indemnity insurance, which is why these claims are worth pursuing where they are good — there is usually someone to pay.

The hub

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A free 20-minute call

Tell us what has happened and we will tell you whether we can help, what it would involve and roughly what it would cost. No advice is given on this call and there is no charge for it.

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