Professional negligence occurs where a professional fails to perform their services to the required standard and this failure causes a loss. The term “professional” is a person with a particular expertise or skill which could include (but not limited to) builders, engineers, property professionals, architects, accountants, solicitors, barristers and technology programmers.
To succeed with a professional negligence claim, you will need to show the following:
Duty of care
A claimant will need to show that the professional owed a duty of care. This is usually evidence by way of a contract/retainer or implied by the conduct of the parties.
Breach of duty
A claimant must prove that the professional breached the duty of care by showing that the professional’s conduct fell below the standards of a reasonably competent professional. The professional is judged by a standard of care of a reasonably competent professional specialising in the area in which they hold themselves out as having expertise.
Once a claimant has established a breach of duty, the claimant must prove that the loss was caused by the negligent act or advice. In other words, “but for” the professional’s negligence, would the loss have still occurred.
The general rule is that damages should put the claimant in the position they would have been in had the professional not been negligent. Any claim for damages must be foreseeable. A professional may argue that the claimant contributed to the losses and therefore, this defence of contributory negligence (if successful) could reduce the damages awarded in such a claim. It is important that claimants as far as possible take steps to mitigate their losses. In other words, take steps to minimise the losses and avoid steps to increase the loss.
Before commencing court proceedings, it is important for potential claimants and defendants to comply with a procedure known as the “Professional Negligence Pre-Action Protocol” (“the Protocol”).
The aim of the Protocol is to allow the parties:
The process involves sending a Preliminary Notice of the potential claim and then a Letter of Claim to the professional. The Letter of Claim should set out the factual and legal basis for the claim, the allegations against the professional and losses claimed.
The professional is required to acknowledge the letter within 21 days of receiving it. After this, the professional has three months to investigate the claim and provide a Letter of Response in which they can either admit the claim and make settlement proposals or deny the claim.
If settlement is not possible between the parties, it is likely that court proceedings will commence.
(It is important to note that where a claim is brought against architects, engineers or surveyors, the correct protocol to rely on is in fact the “Construction and Engineering Disputes Protocol”.)
In most professional negligence cases, claims must be brought within six years from the date of negligence. This may be extended where the negligence is not known until a later stage. In those cases, the relevant limitation period is three years from the date of knowledge of the facts which might give rise to a claim. There is a long stop date of fifteen years within which claims must be brought.
Before commencing a claim against a professional, it would be worth checking whether the professional has indemnity insurance to protect against legal claims or has sufficient assets. In the event of obtaining judgement in your favour, should the professional not pay the judgement debt, you will need to consider enforcing the judgment.Knowing whether the professional has assets will assist with enforcing.
Whether you are a claimant or defendant, our solicitors will work rapidly to assist you with the following: