When you instruct an accountant or financial adviser you place your trust in them to do the job correctly. Sometimes this does not happen and mistakes are made, or the service is not delivered correctly.
What are the best steps to follow if you think you want to make a complaint for negligence?
Negligence occurs where:
- A duty of care is owed by the professional to the client;
- That duty of care was breached, and;
- The breach of duty of care caused a loss to the client.
In the case of a professional such as an accountant or independent financial adviser, a duty of care can be easily shown. This is due to the fact that a client has instructed a professional due to their expertise. The client relies on that expertise, and a duty of care therefore arises.
Any loss will be calculated carefully, and you must be aware that allegations may be made of contributory negligence. An example of this may be where you have not provided full information to the professional which in turn hindered them in carrying out any work.
However there are many occasions where mistakes are made, or service is not adequately provided, where no loss has been suffered. In these situations it may be possible to complain to the professional’s business and if a satisfactory response is not received, a complaint may be made to the professional’s regulatory body.
For accountants this may be either the Association of Chartered Certified Accountants, or the Chartered Institute of Management Accountants, or the Institute of Chartered Accountants in England and Wales. For Independent Financial Advisers, this is the Financial Conduct Authority.
In most cases you will have to complain directly to the professional’s business before going to the professional body.
What practical steps can I take?
You should immediately ask for a copy of the file of papers that belong to the professional. They will refuse to release these papers if monies are owed in relation to fees. A professional is allowed to hold a lien over papers (they are entitled to refuse to provide them to you) if monies are owed in relation to invoices raised.
In such a case it is advisable to ask the professional to give you an undertaking that the files will be retained. At the same time you should ensure that you have collated all emails and correspondence between you and the professional that show the nature of the relationship.
The pre-action protocol
In a professional negligence case it is not prudent to issue proceedings straight away. A pre-action protocol is required to be complied with under the Civil Procedure Rules. This requires a letter of notification to the professional who is then entitled to investigate. This is then followed up by a further more detailed letter of claim together with the opportunity for the professional to respond fully.
At all times it is worth considering whether the matter can be settled without the issue of proceedings by discussion with the professional’s firm. Litigation should only be used as a last resort.