Professional Negligence

Professional negligence is where a professional fails to perform their responsibilities to the required standard to be expected of a reasonably competent practitioner in their field, and this poor conduct results in foreseeable financial loss or harm for the client.

All professions can be subject to a claim. There is no definitive list, but here are some examples:

• Legal professionals – solicitors, legal executives, trade mark attorneys, barristers, licenced conveyancers or notaries.
• Finance sector professionals – accountants, auditors, tax advisors, stockbrokers, insurance brokers, actuaries or financial advisors/IFAs.
• Property professionals – surveyors, architects, quantity surveyors or builders.
• Other professionals – IT consultants or engineers.

Our professional negligence solicitors can help advise you on whether you can sue a professional and bring a claim for compensation. For more information, get in touch with one of our negligence claims experts today.

If you have been let down by your professional advisor, you will wish to seek legal advice to consider whether you have a claim and can sue for compensation.

Whilst this is dependent on the facts of your claim, a successful claim in professional negligence must satisfy three basic requirements proved on the civil standard of balance of probabilities. It must be shown that:

1. you were owed a duty of care by the professional;
2. the professional breached this duty by what they did or did not do;
3. you suffered loss or damage as a result of the breach and you would not have suffered the loss had the breach not occurred.

If you think you professional advisor has let you down, you should always act as quickly as possible to explore your legal options and gather evidence to support your professional negligence claim. You should seek legal advice on both the limitation period and the merits of your claim and take appropriate action to seek the compensation you deserve.

The basic rule is that you must have settled or issued your claim in court within the relevant limitation period; six years of the date of loss, otherwise the claim is statute barred. This period can be extended where the negligence only becomes apparent at 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 (subject to a long stop date of 15 years).

A claim starts by following the Professional Negligence Pre-Action Protocol, which encourages an exchange of information and a set timetable with which the parties must comply. If the claim is not settled under the protocol, you can then commence court proceedings.

Your losses are generally assessed from the date of the breach. The usual principle is that you should be put back in the position you would have been in had the breach by the professional not occurred. The loss must have been caused as a direct result of the negligence and it must have been reasonably foreseeable.

You can still make a claim for compensation even if you believe you contributed to the loss you suffered. The losses claimed may be reduced by a court giving regard to your share in the responsibility.

If you have a claim, you cannot sit back and claim all your losses. You are under a duty to minimise any loss and avoid steps that could increase the loss. If you fail to do so, you may be unable to recover damages for losses which could have been avoided by taking reasonable steps.

It is important to establish the professional has adequate insurance at the start of your claim.

Professionals are required to have professional indemnity insurance to ensure any compensation claim can be satisfied. If your claim is successful, the insurance company will usually pay the sum awarded to you on behalf of the professional. However, in rare cases, a policy may be avoided or its terms not sufficiently wide enough to cover your claim, or the insurer may become insolvent.

You will not recover your losses and you will usually be ordered to pay the professionals costs (in addition to your own).

It is possible to obtain an insurance policy ‘after the event’ to protect against the risk of having to pay your opponent’s legal costs and expenses if you lose your claim. Please refer to our litigation funding and insurance options page for more information on legal expenses insurance.

The usual rule is that the loser pays all or part of the winner’s costs (in addition to their own costs). If you are successful, the professional will ordinarily be ordered to pay about 70% of your costs.

Apart from funding the claim from your own resources, you may be able to enter into a risk-sharing arrangement. We are willing to offer “no win no fee” type funding arrangements, such as conditional fee agreements and Damages Based Agreements, on a case-by-case basis. For more information on funding arrangements, please refer to our litigation funding and insurance options page.