Professional Negligence FAQs

What is professional negligence?

Professional negligence is when a professional has failed to perform their services and responsibilities to the required standard. This type of claim can be made against many different professionals such as solicitors, barristers, accountants, independent financial advisers, surveyors and insurance brokers.

Claims are based on one or more of the following legal causes of action. Breach of (a) contract; (d) duty of care in tort of negligence (c) fiduciary duty; and/or (d) statutory duty.

Establishing negligence alone is not enough to bring a claim. It is vital to show that the professional’s negligence has caused you a financial loss. A professional may have acted negligently, but if his actions or advice did not cause any loss then a claim will not succeed.

What are the elements of a claim?

Every professional negligence claim has 3 essential ingredients. These are:

  1. Duty of Care. The professional owed you a duty of care. This duty is usually specified within the professional’s terms of business or an engagement letter. In addition, professionals are also under a general duty to act with reasonable care and expertise within their chosen industry.
  2. Breach of duty. The professional breached the duty owed. A professional will be deemed to have breached their duty of care to you if the professional has made an error which no reasonable member of that profession would have made.
  3. The loss was caused as a result of that breach and, but for the professional’s negligence, you would not have suffered that loss.

It is vital that all 3 ingredients are established for there to be a viable claim. A claim will not be possible if 1 is missing.

What evidence do I need?

You have the burden of proving a negligence claim against the professional. This is on the balance of probabilities i.e. more likely than not or 51% or more. It will be necessary to prove the duty of care, the breach of that duty and that this breach has caused you a financial loss.

At Verisona Law, we will review and investigate all of the evidence in support of your claim. This will involve obtaining a copy of the professional’s file, including any retainer, terms and conditions, emails, letters and other documentation.

Expert evidence may also be required. This is usually another professional in the same field of expertise. For example, an expert architect is necessary in a claim against an architect to give their opinion on the standards of what a reasonably competent architect should have properly advised.

What is the pre-action procedure?

Once a potential claim has been investigated and it appears to be worthwhile pursuing, you are required to comply with a procedure known as the ‘Professional Negligence Pre-Action Protocol’. This is to ensure an early exchange of information and hopefully a resolution of the dispute without the necessity for proceedings.

The central steps to the Professional Negligence Pre-Action Protocol are as follows:

  1. Preliminary Notice. As soon as there is a reasonable chance that a claim will be brought, you are expected to notify the professional in writing with a brief outline of the grievance and an indication of the financial value of the claim. The professional should acknowledge this letter within 21 days.
  2. Letter of claim. Once the potential claim has been investigated, it is necessary to send a Letter of Claim to the professional. This is a detailed letter setting out the facts upon which the claim is based, the allegations against the professional, how this caused the alleged loss and how the loss is calculated.

The professional should acknowledge receipt of the Letter of Claim within 21 days of receiving it. The professional will then have 3 months from this date to investigate the claim and respond.

  1. Letter of Response. Once the investigations have been completed, the professional should send a Letter of Response. The Letter of Response will set out the answers to the allegations and whether the claim is admitted or denied.

Usually further negotiations will follow between the parties as they are expected and encouraged to consider whether the claim can be resolved prior to any court action.

The Professional Negligence Pre-Action Protocol means that the average timescale for completing the pre-action phase can generally take anywhere from 4-10 months from the date of the Letter of Claim.

What are the deadlines?

There are deadlines by which different types of claims must be issued. The usual limitation period in most professional negligence cases is 6 years from the date on which the professional was negligent.

It may be possible to extend this period if the negligence only become apparent at a later stage. In such cases, the limitation date can be extended up to 3 years from the date you became aware of the negligence. This extension is subject to a 15 year long stop date.

Once limitation has expired you will be ‘time-barred’ from bringing any claim. Limitation is therefore an important and integral part of our investigations.

What if the professional has limited assets?

As experienced Professional Negligence solicitors, we will consider the professional’s ability to afford any claim at the outset. After all, there is little benefit in throwing good money after bad in pursuing a claim against an opponent with limited or no assets.

Fortunately, in Professional Negligence claims, a professional is often required by their regulator to have professional indemnity insurance in place to protect against legal claims of this nature.

Should I make a complaint first?

It may be appropriate to make a formal complaint prior to considering a Professional Negligence claim. Professionals are required to have a procedure for handling complaints and should set out their service standards, proposed charges and complaints procedure at the outset.

It is important to ensure that you do miss any time limit for bringing a professional negligence claim as that does not stop whilst you are going through the complaints process.