Claims against financial advisers have been on the increase in recent years and we have seen cases where an adviser provides (bad) financial advice in an area where they have no expertise; where a financial adviser/accountant fails to explain and/ or warn their clients on the fiscal implications of entering into particular financial products; and cases where an adviser fails to adequately assess the financial situation of their client to provide correct advise on suitable products for them personally.
If you have been given bad advice or have a complaint about a Financial advisers it is important that you take independent legal advice to seek compensation for your loss before the time limits expire (usually six years).
Do I have a negligence claim against a financial advisor?
Professionals in the financial industry who are tasked to give financial advice to clients are highly trained and regulated by their professional bodies. Certain advisers are regulated by the FCA and to fulfill their duties they must comply with certain rules and regulations of that professional body.
In most cases, a financial adviser will owe concurrent tortious, contractual, statutory and fiduciary duties to their clients (depending on the specific facts of each case).
A high level of trust is placed upon such financial adviers by their clients- many of whom are not sophisticated consumers and rely heavily on the advice given. If a financial adviser fails to deliver the service to the standard expected of a reasonable professional in that speciality field, then a client has every right to bring a complaint (and court proceedings) if financial or personal loss is suffered as a result.
For example, if an accountant provides bad advice, the personal and reputational damage could be damaging and could lead to enforcement action being taken by HMRC. Our tax disputes team have years of experience defending cases where a client is being pursued for a tax debt by HMRC.
How do I prove that my financial adviser has been negligent?
Professional negligence occurs where a professional fails to perform his responsibilities to the required standard. A claim brought by the professional’s client may be based on one or more of the following:
- Breach of a contractual term (express or implied).
- Breach of duty of care owed in the tort of negligence.
- Breach of fiduciary duty.
- Breach of statutory duty.
Where a duty is owed in contract or tort, you must establish that there has been a breach of that duty. You must show that the professional did not comply with the requisite standard owed. Broadly speaking, negligence is established if the professional has made an error which no reasonable member of his profession, operating in similar circumstances, would have made. Where such errors cause a financial loss, claims can be pursued against the relevant financial adviser.
Professional Negligence: The Basic Requirements
The tort of negligence has three basic requirements. All of these must be evidentially proved on a balance of probabilities (ie that they are more likely than not):
- Duty of care – The defendant owed the claimant a duty not to cause the type of harm suffered.
- Breach of duty – The defendant breached the duty owed.
- Causation – This has two elements, both of which must be proved ie (a) factual causation in that the claimant must prove, but for the defendant’s negligence, they would not have suffered loss and (b) legal causation or remoteness in that the defendant’s negligence was the legal cause of loss.
What are the time limits for a professional negligence claim?
The limitation period is 6 years from the accrual of the cause of action (section 2, Limitation Act 1980). However, if six years have passed since the date of negligence but a claimant has only just discovered the effect of latent damage, then the limitation period may be extended to three years from the date of knowledge of the material facts (section 14A, Limitation Act 1980).
In any event, legal representation should be sought immediately upon an act of negligence to prevent claims from being time-barred.
Examples of Financial Adviser Professional Negligence Cases
The following are commonplace examples of potential claims:
- Failure to adequately assess a client’s financial situation to correctly advise on suitable financial products.
- Providing bad/poor/incorrect advice on entering into a financial product and/or investment eg SIPPs.
- Failure to advise on the risks of an investment/product, resulting in a financial loss.
- Wrongly assessing a client’s attitude towards risk when recommending a (risky) financial product to invest in such as CFDs, crypto-currencies, FX derivatives, LIBOR-linked products etc.
- Mis-selling financial products.
- Failing to follow instructions provided by a client.
We have a team of Specialist Professional Negligence Solicitors and Barristers that are experienced in recovering damages for financial loss suffered after a financial adviser has provided sub-standard legal advice or legal conduct. We can often take on such claims on a no win no fee basis once we have assessed and advised you on the merits of the proposed professional negligence action.
How do I start a professional negligence claim?
Parties to litigation or contemplating litigation must adhere to the Civil Procedure Rules 1998 (the CPR). Therefore, the provisions of the CPR are applicable, in particular the Pre-Action Protocol for Professional Negligence (professional negligence PAP).
The updated PAP for professional negligence came into effect in May 2018, on which date claims to be issued from then must comply with.
All the parties are encouraged to attempt to settle the professional negligence claim without issuing formal proceedings in court. The PAP sets out the framework to be followed and encourages an exchange of information and a set timetable, which both parties must comply with to encourage early settlement without the need for a costly court process.
City of London Specialist Professional Negligence Lawyers
We specialise in professional negligence claims and have years of experience in handling and resolving negligence claims. Our lawyers have market-leading experience of providing bespoke legal advice and bringing complex claims to settlement. As a leading law firm regularly featured in the news and media and with a track record of success, you can be assured your negligence claim will proceed with precision and care.
We ensure that we provide the best possible outcome for our clients by conducting in depth investigation and research into the realistic prospects of a case before advising on the appropriate course of action in order to reduce time and expense. Where appropriate we encourage the use of alternative dispute resolution (such as mediation and without prejudice negotiation) and our negotiation skills are first-class. If required, we are extremely experienced and capable at navigating our clients through the litigation process.
Clients hire us because of our extensive experience in litigation disputes – when necessary, we know when to go to court and we know how to litigate.
Book an Initial Consultation with our Professional Negligence Lawyers
If you have a claim against a professional and want expert legal advice, get in touch so we can assess the legal merit of your case. We can often take on such claims on a no win no fee basis (such as a CFA or DBA) once we have discussed the claim with you and then assessed and advised you on the merits of the proposed professional negligence action.
Our expert legal team of leading Professional Negligence Solicitors & Barristers can provide urgent help, advice or representation to you. Just call our Professional Negligence Lawyers on 02071830529 or email us now.
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LIMITATION ACT 1980 – WARNING
The Limitation Act 1980 sets out strict statutory deadlines within which you must bring litigation claims. Your legal rights will become irreversibly time-barred if you fail to take legal action (or defend a claim on time). Therefore, you should seek specific legal advice about your legal dispute at the very first opportunity so that you understand the time you have left. Failure to take advice or delay in taking action can be fatal to your prospects of success.