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Professionals are trusted to get things right: their qualifications, skills and experience provide reassurance that their clients are receiving the highest quality service. But occasionally, a professional fails to perform their duties to the proper standard, and when that happens it might be necessary for the client to bring a professional negligence claim to remedy the damage that has been caused and compensate any financial losses suffered by those clients.
Professional negligence occurs where a professional person fails to perform their duties to their clients to the required standard, causing their clients loss or damages as a result. The duties of the professional are governed by the law of tort and the specific contract entered into between the professional and the client.
As such, professional negligence claims can be brought in tort and in contract, and it is often the case that court proceedings brought for professional negligence involve both elements.
There is no definitive list of the professions which could be exposed to professional negligence claims, but claims are commonly brought against accountants, architects, brokers, construction professionals, financial advisors, lawyers, medical professionals and surveyors, and the firms, companies and organisations that they represent.
In order to establish a claim against a professional for negligence the following four-stage test must be satisfied:
If any of these elements of the test cannot be proved, then a professional negligence claim in tort will not succeed, but there may still be grounds to issue court proceedings to bring a breach of contract claim against the professional.
In order to prove a duty of care you have to establish a relationship between the client and the professional, and that the relationship was sufficiently close to impose a legal obligation for the professional to meet a standard of reasonable care when providing the services they have been instructed to provide.
The professional breaches the duty of care by providing the client with a service which falls below the standard which would reasonably be expected of a competent professional of the same profession, carrying out those services in the same circumstances. Proving the standard of a competent professional will usually require the client to obtain expert evidence from a professional in the same field.
What constitutes a breach of duty is subjective and will depend on a number of factors specifically relating to the case. To do this, the client will need to provide evidence to support their case, which will include all the relevant documents relating to the client’s instructions to the professional, evidence of the negligent act or negligent advice, and the expert evidence showing the standard of a competent professional.
The breach of duty must have caused the clients loss for a professional negligence claim to succeed. The easiest way to look at this is to ask whether the client would have made a different decision had the professional provided a service which met the standard of a reasonably competent professional, and if so would that different decision have left the client in a better financial position than they are now.
It is important to understand that the client must be able to prove that they actually relied on the negligent advice when deciding on the course of action which led to their losses, otherwise the Court might find that the breach of duty was not the cause of the loss. It is therefore vital to support a professional negligence claim with robust and detailed witness evidence dealing with this particular point.
Often, professionals faced with professional negligence claims will try to argue that the client contributed to their loss in some way, which is known as contributory negligence. This can result in a reduction in the value of the claim, even if the servce provided by the professional is found to have constituted a breach of duty.
The remoteness test requires the client to prove that the loss suffered was a reasonably foreseeable consequence of the professional’s breach. If the loss was a reasonably foreseeable consequence, the professional may be held liable for it. If it was not, the professional negligence claim will not succeed.
As well as owing clients a duty of care in tort, a negligent professional might also owe contractual duties to their clients if they have entered into a contract with them and their actions have caused a breach of that contract. The client might therefore have a potential claim against the professional for any losses which flow from the breach of the contract, as well as or instead of a professional negligence claim.
Professional indemnity insurance policies are taken out by professionals which can protect them if a client brings a negligence claim or a breach of contract claim against them. Like with any insurance policy, it provides cover to ensure that any financial loss suffered by a third party which is the fault of the person insured will be compensated. Most professionals are required by their regulators to take out indemnity insurance, and will have to notify their insurer once they become aware of a potential claim.
Once a claim has been issued, the Court will set out what steps need to be taken for the matter to be ready for trial. However, professional negligence cases often settle at an early stage, meaning more often than not claims never reach the Court. There are several advantages to settling a negligence claim before trial, primarily that the whole process of getting to trial is time consuming and expensive, meaning the time and costs that can be saved by agreeing a compromise often outweigh the benefits and risk of going to trial.
Our team of solicitors have a track-record of acting for and against a huge range of professionals on professional negligence disputes.
If you need any advice on professional negligence, please contact a member of our commercial disputes team in confidence here or on 02920 829 100 for a free initial call to see how they can help.
To speak to one of our experts today, please contact us on 02920 829 100 or by using our Contact Us form for a free initial chat to see how we can help.
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