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Bringing a Professional Negligence Claim

Thursday, 18 April 2013

Professional negligence occurs where a professional such as an accountant, architect, solicitor or surveyor fails to perform their responsibilities to the required standard, resulting in damage or loss. Claims in these circumstances have become more common recently due to increased reliance on professional advice and the struggling economy.

If a professional has caused you loss, what options do you have to obtain redress?

Entitlement to Bring a Claim

Before examining whether negligence has occurred, either through act or omission; it is necessary to consider whether a claim exists.

  • Duty of care - In order to bring a claim, you must be able to demonstrate you that the professional owed you a duty of care. Where you instructed the professional to advise you or act for you, this will be easily established. Additionally if a professional claims to have particular expertise and has given you advice, a duty of care may be implied even if there was no contractual agreement.
  • Loss - You must be able to demonstrate loss and that the loss was caused by the breach of duty of care and not by other causes.
  • Time limits - You must ensure that any claim is brought within statutory time limits; usually for professional negligence cases this is six years.

Showing That The Professional Has Been Negligent

The law provides that a professional may be negligent if they have fallen below the standard of a reasonably competent member of the relevant profession. For a claim to be successful, the negligence must also have caused loss.

Whether there has been a breach of a duty which caused a loss will be determined with reference to the facts of the specific case, established legal principles and possibly expert evidence.

Considerations When Pursuing a Claim

Unless a case settles quickly, pursuing professional negligence claims can be expensive. Even if you win at court you are unlikely to recover all the costs incurred in your case from the defendant. Therefore consider taking these steps before commencing legal action:

  1. Use an in-house complaints procedure. Raising the issue with the professional and using the relevant internal procedure may mean that the issue can be resolved quickly.
  2. Bring the issue to the profession’s complaints body, if one exists. Again, this may enable the matter to be resolved without legal action being taken.

In addition, throughout the litigation process, the parties should consider alternative ways of resolving the dispute, for example through mediation or arbitration.

As a last resort, court proceedings can be commenced. There are several stages to this process and it may take quite some time to reach trial, perhaps over a year. Although it is fairly common for professional negligence cases to be settled, this may happen just before or even during the trial. Therefore, the decision to take court proceedings should certainly not be regarded as a quick-fix solution.

For more information about making professional negligence claims please contact us on 0207 611 4848.

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