It is not just only a client who can issue a claim in negligence against their professional advisers. A claimant can be a client, third parties and even, rarely, those acting ‘on the other side’ of a transaction.
In order to commence a professional negligence claim before a Court in England & Wales you must issue a County Court or High Court claim form accompanied with Particulars of Claim setting out the details of the claim including the remedy sought from the errant professional. The issuance of the Claim Form must be done within strict time limits known as limitation periods and the relevant court fee must be paid (which is a percentage of the losses claimed up to a maximum of £10,000).
Claims against Professionals owing a duty to client
In professional negligence claims who the client is will normally be clear from the terms of the instruction or retainer letter, however, this is not always the case.
Can I claim against a professional where there is no retainer?
In claims against solicitors, a retainer can either be implied from the solicitors’ conduct or arise by way of an assumption of responsibility or by express oral instruction.
The law is clear (Morgan v Blyth, Dean v Allin & Watts) that, even if there is no express retainer, the existence of a retainer may be inferred from the acts of the parties; the test can be summarised as:
“was there conduct by the parties which was consistent only with [the solicitors] being retained as solicitors for the claimants?”
Who is a professional in a negligence claim?
It is sometimes not always apparent who or what the ‘professional’ is, in terms of whether or not a professional negligence claim is an appropriate one to be brought against them.
In Commissioners of Inland Revenue v Maxse, it was considered that professional activities require the “application of intellectual skill”. The Respondent was the sole proprietor, editor and publisher of a monthly magazine which he purchased for £1,500. Up to 1905 he had to provide capital to cover losses on publication, but thereafter practically no capital was required. It was held in the Court of Appeal, that the Respondent was both exercising the profession of a journalist and editor, in respect of which he was entitled to exemption from Excess Profits Duty.
How does the court define “professional” in negligence claims?
The term ‘professional’ in this respect has been given a wider, nebulous definition. It is basically defined as:
- those who claim (‘profess’) a special skill, and
- who thereby attract the concomitant duty to practise that skill in a proper manner.
Who can be sued for professional negligence?
A claim can be brought against any professional- the list is extensive. A professional is an individual or a firm who hold themselves out as having expertise and skill in the services they provide.
We help clients make a successful professional negligence case after receiving bad advice from:
- Legal Executives
- Independent Financial Advisors (IFAs)
- Tax advisers
- Insurance brokers
- Medical and Healthcare Professionals
- Project Managers
- Construction professionals
- others who hold themselves out as professionals
How to prove negligence against a professional
Establishing professional negligence is more than being given “bad advice”– a claim can be made where a professional fails to perform their responsibilities to the standard expected of them, for example:
- Lawyers: missed time limits; failure to investigate fundamental evidence; failure to prepare a case with due care; failure to comply with court directions; and providing incorrect legal advice.
- Financial advisers: failure to advise on the risks of a entering into a financial product; wrongly assessing a client’s attitude towards risk when recommending a (risky) financial product to invest in; and failing to follow instructions provided by a client.
- Surveyors: failure to discover latent defects such as dry rot, woodworm, a leak; over-valuation of a property; and failure to identify subsidence.
- Conveyancers: failure to investigate title correctly; failure to discover or warn of restrictive covenants burdening the property; failure to ensure proper planning permissions and building regulations consents obtained.
What evidence is required to bring a negligence claim against professionals?
Where a professional negligence claim is brought/defended, the surrounding evidence will be critical. Early evaluation of the evidence is key, such evidence includes the retainer, correspondence with the professional, evidence of breach and proof of losses.
When does the professional negligence PAP apply?
It applies to negligence claims against legal professionals, accountants, financial advisers, auditors and certain other professionals. However, it doesn’t apply to claims against construction professionals, (e.g. architects, engineers and quantity surveyors) as the Pre-action Protocol for Construction and Engineering Disputes is applicable instead. Nor against healthcare professionals (see the PAP for the Resolution of Clinical Disputes) or in defamation cases (see the PAP for Defamation Claims).
Case study: Successful claim against solicitor who mis-managed settlement funds for clients
The defendant solicitors acted in group litigation for almost 30,000 Ivory Coast residents in a damages claim for personal injuries caused by the dumping of toxic waste in the Ivory Coast. The solicitors were successful in securing settlement sums of over £30 million.
However, the defendant firm arranged for the settlement sums to be paid into an (unsecure) bank account in the Ivory Coast. Consequently, around £6 million was stolen by fraud from the settlement sums held in the African bank account. The solicitors were negligent in not conducting diligence checks on the account and taking into account the potential for fraud or corruption. Clearly, the firm were in breach of its duties as the trustee for the sum received.
The firm presented the defence that the loss was too remote to be recoverable. However, the court were persuaded that the defendant should have at least recognised the risk of a dishonest claim and the claimants achieved the successful result of receiving the compensation they would have received in the underlying case had the defendant firm not have acted negligently.
Book an Initial Consultation with our Professional Negligence Lawyers
Do you have a claim against a professional? If you want expert legal advice, do not delay in instructing us so we can assess the legal merit of your case.
We can often take on such claims on a no win no fee basis (such as a Conditional Fee Arrangement) once we have discussed the claim with you and then assessed and advised you on the merits of the proposed professional negligence action.
Our expert legal team of leading Professional Negligence Solicitors & Barristers can provide urgent help, advice or representation to you. Just call our Professional Negligence Lawyers on 02071830529 or email us now.
Instruct Specialist Professional Negligence Solicitors
We are a specialist City of London law firm made up of Solicitors & Barristers operating from the only law firm based in the Middle Temple Inn of Court adjacent to the Royal Courts of Justice. Our team have expertise in advising on claims for compensation against professionals that have fallen below the standard expected, which causes clients financial or personal loss. We are experienced in bringing successful claims against negligent solicitors, barristers, financial advisers, insurance brokers, surveyors, valuers, architects, tax advisers and IFAs.