If a professional such as a solicitor, barrister, architect or accountant has failed to perform to the standards expected of them and you have suffered a financial loss as a result, you may be able to bring a professional negligence claim for compensation.
Acting early is often vital, because professional negligence claims must be brought within a defined timeframe. When you need urgent action, we are quick and decisive. Where strategic input is required, we will give you pragmatic solutions to avoid a dispute or mitigate risk with legal advice that is clear, concise and delivered in plain English.
We are highly experienced in this specialist area, having been involved in numerous successful cases. Professional negligence can be a potential minefield, but we will assist and guide you in securing an optimal outcome.
CONTACT US
If you wish to discuss a case with us, please contact our professional negligence specialist, solicitor Mark Robertson, on 01420 81270 or fill in the form below.
Areas of expertise
We have experience in bringing claims against the following professionals:
Property negligence
- Failing to advise if a property had certain rights of way to the highway or failing to register the title or other legal rights upon purchase
- Failing to advise on specific onerous terms such as ground rent or increasing service charges when acquiring a lease
- Failing to properly activate a break clause resulting in you being unable to move premises and being liable for further rent
- Failing to advise on certain restrictions in relation to planning or building regulations
- Failing to complete a property transaction or completing too late and therefore missing the Stamp Duty holiday.
Litigation negligence
- Failing to commence proceedings within the limitation period, meaning the claim was statute barred
- Failing to comply with a court deadline, leading to your claim being struck out.
Probate / Wills negligence
- Failing to include all beneficiaries when drafting a Will
- Failing to carry out an action with estate administration leading to the loss of IHT relief.
Family / Divorce negligence
- Failing to properly consider the value of your partner’s matrimonial assets, such as a valuable pension scheme, meaning you weren’t awarded your fair share.
- Failing to provide correct tax advice or to meet deadlines, resulting in you incurring HMRC penalties
- Failing to ensure accounts or tax returns were accurate
- Failing to submit VAT returns or providing wrong advice on VAT recoverability
- Failing to detect fraud
- Failing to provide competent advice on estate tax planning
- Failing to value company shares / business accurately
- Failing to conduct thorough due diligence.
- Failing to give an accurate valuation of a property
- Failing to inspect or observe properly or to make sufficient enquiries
- Failing to note structural movement or subsidence
- Failing to advise on a property’s state of repair
- Failing to recognise defects
- Failing to make a proper appraisal.
- Failing to advise on correct and up-to-date legal principles
- Failing to give correct advice on prospects of success
- Failing to adequately draft your particulars of claim or defence
- Failing to determine the appropriate remedy
- Failing to identify the correct party to sue
- Failing to advise on the correct value (quantum) of your claim
- Failing to draft documents competently and without errors
- Failing to competently present your case in court.
- Failing to give competent financial advice
- Failing to act in your best interests, including mis-selling a financial product to you (e.g., investment bond, pension, ISA)
- Failing to advise on pensions (including withdrawal from final salary schemes)
- Failing to advise of the risks of an investment, or recommending an investment which does not match your risk profile
- Failing to advise appropriately with tax avoidance schemes
- Failing to properly assess your financial circumstances or to ensure you can afford a product / investment
- Failing to advise on contribution limits
- Failing to advise on the implications of products recommended
- Failing to comply with the Financial Services and Markets Act 2000.
- Failing to design competently
- Failing to spot a potential issue in a development
- Failing to include elements requested
- Failing to select appropriate or suitable materials
- Failing to provide adequate plans free from errors or defects.
Frequently Asked Questions
Professional negligence is when a professional has failed to perform their services and responsibilities to the required standard. This type of claim can be made against professionals such as solicitors, barristers, accountants, architects, independent financial advisers, surveyors and insurance brokers.
Claims are based on one or more of the following legal causes of action: breach of (a) contract; (b) duty of care in tort of negligence; (c) fiduciary duty; and / or (d) statutory duty.
Establishing negligence alone is not enough to bring a claim. It is vital to show that the professional’s negligence has caused you a financial loss. A professional may have acted negligently, but if their actions or advice did not cause any loss then a claim will not succeed.
Every professional negligence claim has three essential elements. These are:
- Duty of Care: The professional owed you a duty of care. This duty is usually specified within the professional’s terms of business or an engagement letter. In addition, professionals are also under a general duty to act with reasonable care and expertise within their chosen industry.
- Breach of duty: The professional breached the duty owed. A professional will be deemed to have breached their duty of care to you if they have made an error which no reasonable member of that profession would have made.
- Causation: Loss was caused as a result of that breach and, but for the professional’s negligence, you would not have suffered that loss.
It is vital that all three elements are established for there to be a viable claim. A claim will not be possible if one is missing.
You have the burden of proving a negligence claim against the professional. This is on the balance of probabilities i.e., more likely than not or 51% or more. It will be necessary to prove the duty of care, the breach of that duty and that this breach has caused you a financial loss.
Expert evidence may also be required. This is usually another professional in the same field of expertise. For example, an expert architect is necessary in a claim against an architect to give their opinion on the standards of what a reasonably competent architect should have properly advised.
At Downie & Gadban, we will review and investigate all of the evidence in support of your claim. This will involve obtaining a copy of the professional’s file, including any retainer, terms and conditions, emails, letters and other documentation.
Once a potential claim has been investigated and it appears to be worth pursuing, you are required to comply with a procedure known as the ‘Professional Negligence Pre-Action Protocol’. This is to ensure an early exchange of information and hopefully a resolution of the dispute without the need for proceedings.
The central steps to the Professional Negligence Pre-Action Protocol are as follows:
- Preliminary Notice: As soon as there is a reasonable chance that a claim will be brought, you are expected to notify the professional in writing with a brief outline of the grievance and an indication of the financial value of the claim. The professional should acknowledge this letter within 21 days.
- Letter of Claim: Once the potential claim has been investigated, it is necessary to send a Letter of Claim to the professional. This is a detailed letter setting out the facts upon which the claim is based, the allegations against the professional, how they caused the alleged loss and how the loss is calculated.
The professional should acknowledge receipt of the Letter of Claim within 21 days of receiving it. They will then have three months from the date of acknowledgement to investigate the claim and respond.
- Letter of Response: Once the investigations have been completed, the professional should send a Letter of Response. This will set out the answers to the allegations and whether the claim is admitted or denied.
Usually, further negotiations will follow between the parties, as they are expected to consider whether the claim can be resolved prior to any court action.
The Professional Negligence Pre-Action Protocol means that the average timescale for completing the pre-action phase is generally 4-10 months from the date of the Letter of Claim.
The correct measure of loss is to put you in the same position you would have been in had the negligence not occurred.
The level of damages can also be impacted by other factors. For example, you have a duty to mitigate losses and therefore you cannot recover damages for losses which could have been avoided by taking reasonable steps.
The professional may seek to argue that you have caused or contributed to the losses suffered. This is referred to as the defence of contributory negligence. That can result in the amount of compensation being reduced to reflect the relative share of blame.
The value of your claim can be a complex issue. We will advise you on this in clear and straightforward language.
There are deadlines by which different types of claims must be issued. The usual limitation period is six years from the date on which the professional was negligent. It may be possible to extend this period if the negligence only become apparent at a later stage. In such cases, the limitation date can be extended up to three years from the date you became aware of the negligence. This extension is subject to a 15-year-long stop date.
Once limitation has expired you will be ‘time-barred’ from bringing any claim. Limitation is therefore an important part of our investigations.
As experienced professional negligence solicitors, we will consider the professional’s ability to afford any claim at the outset. After all, there is little benefit in throwing good money after bad in pursuing a claim against an opponent with limited or no assets. Fortunately, professionals are often required by their regulator to have Professional Indemnity Insurance in place to protect against legal claims of this nature.
It may be appropriate to make a formal complaint prior to considering a professional negligence claim. Professionals are required to have a procedure for handling complaints, which they should make clear at the outset. However, it is important to be aware that the time limit for bringing a claim does not stop whilst you are going through the complaints process.
