Which professionals can I bring a claim against for negligence?

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.

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.

How do I start a professional negligence claim?

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).

Who is the client in a professional negligence claim?

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 BlythDean 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:

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?

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 pre action protocol 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).

What should be in a Letter of Claim?

As soon as the claimant has decided that there are potential grounds for a professional negligence claim, then it should send a Letter of Claim to the professional which amounts to a notice of intention to commence legal proceedings. It is recommended that the assistance of specialist professional negligence lawyers is sought for this correspondence as this is an important letter and if not handled correctly can lead to a reduced chance of obtaining a settlement or reduced prospects at trial especially if the subsequent Particulars of Claim (which is a statement of case) differs from the Letter of Claim in which case the court has the discretion to impose sanctions. The professional negligence pre-action protocol states that the Letter of Claim should include:

  • the identities of any parties involved in the dispute, or any related dispute (it is important to identify any and all correct defendants including successor entities before the limitation period expires);
  • a chronology containing key dates of the facts on which the claim is based, together with copies of all key documents;
  • reasonable requests which the claimant needs to make for documents held by or in control of the professional;
  • any details of the allegations made by the claimant against the professional;
  • an estimate of the financial loss caused to the claimant by the alleged negligence, including details of how the loss is calculated (in any claim this figure will likely be the subject of expert evidence, for example, consequential losses or loss of chance are difficult to quantify at the outset of a claim without expert evidence therefore an estimate will suffice at this stage, for example “in excess of £2 million”);
  • confirmation of whether or not an expert has been appointed (expert evidence is an important part of any claim in litigation and as experienced professional negligence lawyers we have forged many contacts with leading experts in different industries from forensic accounts to hedging derivatives experts);
  • a request that a copy of the Letter of Claim be forwarded on receipt to the professional’s indemnity insurers (if they have any);
  • an indication of whether you agree to refer the dispute to adjudication. If so, propose three adjudicators or seek a nomination. If you don’t wish to refer the dispute to adjudication, you should give reasons.

In addition, if the claimant has sent other Letters of Claim to any other party in relation to the same dispute or a related dispute, those letters should also be provided with the Letter of Claim.

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.

Want legal advice on the merits of your case?

Our simple enquiry form goes immediately to our litigation team in Middle Temple, London. Call us on +442071830529 from 9am-6pm.

LIMITATION ACT 1980 – WARNING

The Limitation Act 1980 sets out strict statutory deadlines within which you must bring litigation claims. Your legal rights will become irreversibly time-barred if you fail to take legal action (or defend a claim on time). Therefore, you should seek specific legal advice about your legal dispute at the very first opportunity so that you understand the time you have left. Failure to take advice or delay in taking action can be fatal to your prospects of success.

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