If you have suffered financial loss at the hands of a professional who has failed to act to the requisite professional standards, we can assist you. Our professional negligence team have assisted many high net worth individuals and SME businesses obtain compensation from negligent professional advisers such as Accountants, Architects, Builders, Construction and other Engineers, Financial Advisers, Lawyers, Surveyors, Tax Advisers and Valuers.
Our London Solicitors and Barristers are experts in dealing with high value contentious professional negligence disputes. We provide results-focused legal representation to aid those who have been victim to incorrect advice or conduct and can often act on a no win no fee basis after an initial assessment. Our experience and advice will help you decide on the ideal legal strategy to obtain optimal financial redress.
What is Professional Negligence?
Professional negligence is the failure to act within a duty of care owed by a professional to its client. Duties of care can arise by contractual arrangement or by common law tort. The professional must conduct itself to the professional standard commonly held by those in the same profession.
Establishing professional negligence is more than relying on “bad advice”- a claim can be made where a professional fails to perform their responsibilities to the standard required. Professionals are expected perform their service to a standard expected by their peers in their same field of expertise. If the standard falls below what is expected and this breach results in financial loss, then a claim for negligence can be made.
Professional negligence claims are complex and it is essential to instruct a specialist professional negligence solicitor to deal with the claim as early as possible.
Below is a brief guide on some of the important steps a claimant must consider when embarking on a negligence claim. It is not intended to be a substitute for legal advice.
Which Professionals are Sued for Negligence?
A professional is an individual or firm who has expertise and skill in the services they provide. In theory, a claim can be brought against any professional- the list is extensive. We can help clients make a successful professional negligence case after receiving bad advice from:
- Lawyers (e.g. failure to prepare a case with due care; failure to comply with court directions; missed time limits; providing incorrect legal advice; failure to investigate fundamental evidence; conveyancing issues);
- Accountants (e.g. negligent advice causing financial loss; negligent audit of company accounts; incorrect filing of a tax return);
- Architects/Builders/Engineers (e.g. construction work falls below standard reasonably expected );
- Surveyors/Valuers (e.g. failure to note a property defect );
- Financial advisers (e.g. bad recommendation to invest in a product; negligently advised to invest pension pots into a Self Invested Pension Plan (SIPPs)); and
- Tax consultants (e.g. misled on estate planning; failure to avoid consequences of a late filed tax return).
Three Keys to a Successful Professional Negligence claim
A successful claim in the tort of negligence must satisfy three basic requirements proved on the balance of probabilities: a duty of care was owed by the professional; the professional breached this duty and the breach caused a loss. In addition to a claim in tort, there will also likely be a claim for breach of contract (e.g. in a solicitor’s client care letter/retainer), breach of statutory duty or in some case, fraud and/or misrepresentation.
1. Establish duty of care owed by professional to client
The borders of when duty of care is owed (outside of a written agreement) is an evolving area and the tests are being continuously adapted by the courts. It is generally accepted that the courts are reluctant to find a duty of care where there has been no clear assumption of responsibility by the professional (Hedley Byrne and Co Ltd v Heller and Partners Ltd  3 WLR 101) and the claimant must have relied on the advice provided (Henderson v Merrett  2 AC 145).
The test of whether a professional has assumed responsibility is an objective test- focusing on the relationship and dealings between the professional and claimant- if the factual assumption of responsibility matrix exists, then it is immaterial whether the professional thought he had not assumed responsibility (Williams v Natural Life Health Foods Ltd  1 WLR 830).
An assumption of responsibility can be owed to potential claimants beyond the professional’s original client. The House of Lords extended the assumption of responsibility principle in White and another v Jones and others  2 WLR 187, where a solicitor failed to prepare a will to the instructions of the testator before their death leaving two disappointed potential beneficiaries. The solicitor owed a duty to the beneficiaries even though he was only instructed by the testator and did not have a contract with them. Moreover, in Burgess and another v Lejonvarn  EWCA Civ 254, the court held that even an architect owed a duty of care in tort to a friend when giving gratuitous advice.
Therefore, to establish a duty of care the professional must have objectively assumed responsibility and the courts have been increasingly willing to find they are liable to whomever reasonably relies on their advice or service.
2. Establish a breach by the professional of the duty of care
A claimant must prove that the professional fell below the standards of a reasonably competent professional in that occupation- negligence will be established if an error was made which no reasonably member of that profession would have made. The standard of care in negligence is: what would a reasonable man have done in the circumstances? The standard requires less than perfection and more than a mere error in judgement (Moy v Pettman Smith (a firm)  UKHL 7).
The principle in Bolam v Friern Hospital Management Committee  1 WLR 582 has been accepted as the established test for breach of a duty of care in all professional liability cases: a professional is not necessarily negligent if they conform to a practice accepted as proper by members of that profession, even if other professionals would have taken a different approach. The courts have regularly divined the parameters of what a reasonably competent professional would do for a variety of different professionals, for example, Asplin LJ in Barker v Baxendale Walker Solicitors and another  EWCA Civ 2056, sets out the principles determining what advice should be provided by a solicitor in particular factual circumstances.
The particular experience of the professional (from newly qualified to highly experienced) is not relevant- inexperience is no good argument to persuade the court to lower the standard of care. However, if a professional or firm hold themselves out as specialists in an area (for example conveyancing solicitors), then the court will hold them to standard of reasonably competent specialists.
3. The professionals’ conduct caused loss to the client
An important hurdle for a claimant is to show- on a balance of probabilities- that the professionals’ negligence caused the claimant loss. Both factual causation and legal causation must be demonstrated.
To establish factual causation, it must be shown that the claimant’s loss would not have happened “but for” the professionals breach (Barnett v Chelsea and Kensington Hospital Management Committee  1 QB 428). If the loss would have occurred in any event, then the breach did not cause the loss. The loss may include a loss of a chance, for example, in Spring v Guardian Assurance plc and others  3 WLR 354, an employer gave a negligent reference to a former employee, the claimant did not have to prove that a potential employer would have employed him, but simply that he had lost a reasonable chance of employment. In addition, the professional may claim that the loss was not caused by his breach but by an intervening act by either the claimant or a third party.
Once factual causation has been established, it must then be determined that the breach legally caused the loss. This test of remoteness in tort is established in Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd  2 WLR 126 (the Wagon Mound), where a negligent spilling of oil into a wharf was not considered to have legally caused fire damage to the wharf, as foreseeable damage amounted to only pollution and not fire. Therefore, to establish legal causation, loss must be reasonably foreseeable at the time the duty was breached.
Other factors in a negligence claim
How much can be claimed in Professional Negligence Cases?
Damages are generally assessed from the date of the breach. All damages that are reasonably foreseeable can be claimed. The courts rely on the basic compensatory principle to put the claimant into the position he/she would have been in had the professional not have breached the duty owed.
For example, this may be the cost of remedial work to remedy property defects following negligent advice from an architect. Or, if a surveyor overvalues a property which the client purchases, then the loss will be the valuation price less the contemporary market value. However, a claimant cannot claim for losses which could have been mitigated by taking reasonable steps. For example, in Albert Bartlett & Sons (Airdrie) Ltd v Gilchrist & Lynn Ltd & Ors  CSOH 125, the professionals were negligent in installing a leaking roof, however, the claimants failed to mitigate their loss because instead of taking the reasonable step of simply repairing the roof with a sealant, they took the very expensive and unreasonable solution of installing a new roof.
At the outset of any dispute, it is important for a claimant to ascertain whether a professional has professional indemnity insurance. Most professional bodies, such as the Royal Institution of Chartered Surveyors (RICS) and the Law Society, require their members to have professional indemnity insurance in place. Indemnity insurance ensures a claimant’s compensation demand can be satisfied to rectify the professional’s negligent mistake.
Contributory Negligence in Professional Negligence Cases
If a claimant suffers damage partly as a result of their own fault, then the court will justly and equitably reduce damages with regard to the claimant’s share in responsibility for the damage. Although contributory negligence is not a complete defence, defendant professionals or their insurers will often allege contributory negligence to reduce the amount of damages payable.
Limitation Periods in Professional Negligence Cases
Court proceedings for professional negligence claims must be brought within time limits, otherwise the professional can assert that a claim is statute barred. 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).
Legal representation should be sought immediately upon an act of negligence to prevent claims from being time-barred. If the limitation time period is close to expiring then parties could enter into a Standstill Agreement (if strategically appropriate) which freezes the time for a claim for limitation purposes. If the professional refuses to agree to a Standstill Agreement, then a negligence claim must be brought in any event to protect the claimants position and a court may criticise the defendant when it comes to costs.
Pre-action protocol for Professional Negligence (PNPAP)
Both parties are encouraged to attempt to settle the professional negligence claim without issuing formal proceedings in court. The Civil Procedure Rules (CPR) contains the Professional Negligence Pre-Action Protocol.
The protocol 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.