Bringing a claim against a professional such as an accountant, solicitor or surveyor can be a daunting and difficult decision for a client. Relationships have often been developed over many years and bonds of trust built up.
However, mistakes do occasionally occur and when they do it is natural that the client looks to recover any losses they think they may have suffered from that professional.
It is important that potential claims against professionals are assessed properly from the start to ensure that the alleged error actually gives rise to a valid claim. Professional negligence claims are a niche area of law. A mistake by a professional does not automatically equate to a successful claim. Unfortunately claims are often pursued, and fees wasted, in bringing claims which are not valid.
By way of overview, for a claim in negligence to be successful it must be established that:
a. the professional owed the client a duty of care;
b. that duty has been breached;
c. the breach has caused the client loss;
d. the claim has been brought in time.
I expand very briefly on each of the “limbs” above below:
Is there a duty of care?
The starting place for any claim in professional negligence is assessing whether a duty of care was owed by the professional to its client. This can be a complex process. However, as a general rule, professionals are taken to have assumed a responsibility to their clients and will owe a duty of care both contractually and in the tort of negligence.
The question which then arises is the scope of the duty owed by the professional. In many cases this will have been set out in an engagement or retainer letter. However, if it is not, then contractual terms may be implied for instance by statute. It is worth noting that there is no such thing as a “general retainer” and a professional will not be expected to give general business advice or consider the interests of their client generally in the course of acting.
Has the duty been breached?
The client will need to show that the professional did not comply with the standard it was owed at the time. This means that negligence will only be found where an error is made that no reasonable member of the profession, in those circumstances, would have made. Often expert evidence will be required to establish this. The standard expected in a contractual claim may have been set out in the contract, or may be implied by statute. In negligence, the standard of care is that of a reasonable man. The standard that the professional is compared against is not one of perfection and it is not enough to illustrate that another professional would have given a different answer to the one received. However, where professionals hold themselves out as having a particular skill then they will judged accordingly.
Has the breach caused loss?
This is often the most difficult “limb” to satisfy and has been subject to huge judicial interpretation. It is often difficult for clients to comprehend that even if the professional has breached its duty then if that breach did not cause loss then the claim will not succeed. Whether loss has been caused will often be very fact specific and may not be as obvious as thought. The damages awarded may reflect the fact that a client has lost a chance at achieving a particular outcome. For example, losing the chance to pursue litigation which would have been successful had the client been advised correctly.
Has the claim been brought in time?
Generally, any claim against a professional will be barred after the expiration of six years from the date on which the cause of action accrued. When the cause of action accrues will once again be fact specific in most cases. However, Section 14A of the Limitation Act 1980 can provide a lifeline to clients who only become aware of a breach once the six year period has elapsed. In certain circumstances a claim in tort can be brought three years after date of knowledge of the breach having caused loss, or when they ought to have reasonably known about the issue in question. It must also be remembered that there is a long stop date of 15 years after which no claim can be made - even if it has only just come to light.
Summary
The information provided above is by necessity a very brief introduction to the topic of professional negligence. Much often rides on the facts of the specific case and in particular on the sector that the professional operates in. If you would like to discuss any of the above, or a potential claim you may have against a professional, please do not hesitate to contact us for an initial discussion.