In basic terms professional negligence is where a professional person (this could be a financial adviser, valuer, surveyor, accountant or solicitor) fails to perform to the standards required of them, resulting in their client suffering damage or loss. A professional person has a duty of care to their client to perform their job to a reasonable standard and with reasonable care.
Negligence occurs if the professional has not provided a reasonable level of skill and care and the level of service or standard of work that you could reasonably expect from a professional working in those circumstances.
It is a “subset of the general rules on negligence to cover the situation in which the defendant has represented him or herself as having more than average skills and abilities”, but no higher than are normally available from similar professionals and “should not be considered to be a guarantee of success and liability should not automatically arise simply because the hoped-for outcome has not materialised”.
When you contact a professional advisor, you expect them to approach your case with care and skill. Of course, no professional can be expected to offer perfect advice 100% of the time, but if you feel you have been offered exceptionally bad professional advice you can make your case on one of two grounds:
- If you can prove that another experienced professional in the same field would have offered different advice
- If you can prove that the advisor in question failed to adhere to the common standards of practice in their field
There are many times in our lives when we need to take professional advice and on some occasions poor or careless advice leads to serious consequences, from lost money to lost time to missed opportunities. In legal terms, this poor advice is known as professional negligence and if you have fallen victim to it you may be entitled to claim compensation.
We have extensive experience in dealing with professional negligence disputes, whether for professionals or for the victims of professional negligence and this enables us to focus our advice directly on the area most relevant to you. Our experience also means that you can be confident that your case will be dealt with by an appropriate specialist in the field and will be supervised by a partner with significant knowledge of the area.
In recent years the number of claims against doctors, nurses, accountants, surveyors, financial advisors and solicitors has increased dramatically. This increase in claims is due to many factors. We now rely more on the opinion of professionals, some of this work can be extremely complex and individuals and businesses are now more aware of their legal rights and exercise them accordingly. Some of our expert team of solicitors has more than 30 years’ experience of advising businesses and individuals on professional negligence claims. We understand how to achieve the best outcome in difficult and sensitive situations and can help you to assess the prospects of a professional negligence matter.
PROFESSIONAL NEGLIGENCE PROTOCOL
In July 2001 the Pre-Action Protocol came into force, it should be used in all professional negligence cases where there is no other specific protocol that applies. The Pre-Action Protocol encourages all parties to consider using alternative methods of disputes resolution by sharing information at an early stage rather than going through full court proceedings. The protocol sets out standards which need to be followed before court proceedings are started which are summarised as follows:
Aim: The pre-action protocol encourages an early exchange of information, narrowing of issues and consideration of alternative methods of dispute resolution, with a view to wherever possible promote settlement of disputes without the need to issue court proceedings. The aim of the protocol and indeed the overriding objective of the court rules is that the initiation of court proceedings should be seen as a last resort in resolving disputes and sets out standards which need to be followed before costly court proceedings are started . In many cases, it is used however as a stalling mechanism by the solicitors appointed by the professional’s insurers. The basic steps are:
Preliminary notices: Once a claimant becomes aware of an issue and they are considering making a claim, they should send a letter advising of the details and the intention to make a claim. If known, the financial value of the claim should be included. It’s also advisable to encourage the defendant to make their insurers aware.
Letter of acknowledgement: The defendant has 21 days to acknowledge the preliminary notice. However, at this stage they are not required to take any further action. Most defendants will contact their professional indemnity insurers to ensure all relevant details are ready if the case moves forward.
Letter of claim: The next stage is a letter of claim which must be issued after the investigations and evidence has been gathered. The letter sets out each aspect of the claim, the background, the legal argument, the documents to support the claim and the evidence gathered in a chronological order, this can include reports from expert witnesses. The letter of claim needs to show either how the financial loss will be calculated or the financial value suffered as a result of the negligence. At this stage the defendant should pass the details and the letter of claim to their professional indemnity insurers.
Letter of acknowledgement: As with the preliminary notice, the defendant has 21 days to acknowledge the letter of claim.
Letter of response: The defendant has three months to provide a letter of response. It should provide a detailed response to each section of the claim. The letter of response should clearly state whether liability is admitted either in full or partially or whether it is denied completely. If the defendant denies the claims against them they should justify the reasons why in detail relating to each individual aspect of the claim. The defendant should also detail any evidence they intend on using to dispute the claim and provide their own explanation of events.
Letter of settlement: If the defendant wishes to offer a settlement at this time to avoid further proceedings it should be included at the same time as letter of response.
Court proceedings: If there is no letter of settlement and the defendant completely denies the claims against them in their letter of response then court proceedings can be issued. However, in other instances where there is a partial acknowledgement of a claim it is advised that negotiations continue without using court proceedings to reach an agreement. The aim of this would be to have a settlement agreed and a resolution to the claim within six months of the Letter of Acknowledgement.