When can a claim for professional negligence arise?

Posted on 1st September 2020

Every profession owes a duty of care to their client and is expected to offer their services to a certain standard with reasonable care and skill. Professional negligence is a wide definition and occurs when a professional fails to perform their services to the required standard and this failure causes a loss.

There is no standard or legal definition of a ‘professional’. A professional is a person who is considered /or claims to possess expertise in a particular area. A professional negligence claim can be made against any professional who has failed to perform their duties to the requisite standard.

A professional can be an individual or a company and covers a wide of professions including: solicitors, barristers, conveyancers, professional trustees, builders, architects, surveyors, valuers, accountants, auditors, and financial advisors.

Examples of professional negligence

These will include the following claims:

  • Solicitors missing a limitation date, under settling a claim or giving negligent advice;
  • Surveyors failing to identify structural problems with a property;
  • Architects failing to produce accurate plans, failing to comply with planning regulations or committing health and safety breaches
  • Financial advisors misrepresenting the recommended investment, recommending an unsuitable product, or failing to consider their client’s personal position and attitude to risk.
  • Accountants missing accounting deadlines, undervaluation of companies or providing incorrect tax advice.
  • Professional trustees for the mismanagement of trust funds

Can I bring a claim for professional negligence?

In general, a claim for professional negligence may be based on any of the following:

  • Breach of duty of care in negligence (common law / tort);
  • Breach of contract;
  • Breach of fiduciary duty; and
  • Breach of statutory duty

In order to assess whether you have a claim for professional negligence, you will first need to prove that the professional concerned owed you a duty of care. This can be established by a contract between the parties or the parties’ conduct and actions.

Once you have established that you were owed a duty of care, you will then need to prove that the professional breached that duty of care. To do this you will need to show that the services provided by the professional fell below the standards of a reasonable competent professional in that area.

You will then need to prove that as a result of the breach you were caused loss. This is called causation. The relevant test is “but for” the negligence would the loss have still occurred. This usually proves to be the most difficult to establish.

What can I claim for?

The general principle is that a claimant is to be put back into the position they would have been in, if the negligence had not taken place and is calculated from the date of the breach. The burden on proving the loss is on the claimant.

The loss must have been caused as a direct result of the negligence and must be reasonably foreseeable.

In certain cases it may be simple to calculate your loss; however, in other cases, it may be complicated as the negligence resulted in a loss of opportunity or loss of chance. In these types of cases the value of your claim may be based on the percentage of the likelihood of success in the underlying claim.

A claimant must take reasonable steps to minimise their loss and avoid taking any unreasonable steps which may increase their losses. This is known as a duty to mitigate.

Time limits on professional negligence claims

If court proceedings need to be issued on your claim, the claim must be issued within the relevant limitation period.

The relevant limitation period is dependent on the type of claim. However, the limitation period for most professional negligence claims is 6 years from the date of the negligence. This may be extended in certain circumstances if you did not find out about the negligence until a later stage; in these cases the limitation period is 3 years from the date of knowledge.

To avoid cases being bought, however, without too long a delay there is a long stop date of 15 years from the date of the negligence, which bars any claim being bought after this time.

If you are therefore considering bringing a claim for professional negligence, you should always act as quickly as possible and seek legal advice as to the merits of any claim and the potential limitation period.

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