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FAQ’s – Professional Negligence

What is professional negligence?

A professional owes a duty of care to provide his or her services to the standard which one would be entitled to expect of a reasonably competent specialist in his or her profession. Negligence arises if the professional fails to deliver the service to that standard of care and as a consequence loss is suffered by the client to whom the service is provided.

What do you need to prove to win a professional negligence claim?

In order to succeed in a claim you must prove –

  1. the professional owed you a duty of care. This will be gathered from the terms of the retainer under which the professional was instructed to deliver his or her work;
  2. the professional has breached the duty of care in failing to deliver the work and service to the standard of a reasonably competent professional in that profession;
  3. the breach of duty has caused loss and/damage to be suffered;
  4. the extent of the loss and damage caused by the failure to deliver the service to the requisite standard. It may be that even if the service had been delivered to the satisfactory standard a loss would still have been suffered. In such instances the claim would be for the additional loss suffered as a result of the breach of duty.

Do you need expert evidence to prove a professional negligence claim?

Not necessarily. It may be that the case is so straightforward that the negligence is apparent and undeniable, for example a solicitor failing to issue a claim within the limitation period. However in many claims, it will be necessary to secure expert evidence as to what a reasonably competent professional in the profession would have done in order to ascertain whether the standard of care has or has not been met.

What is loss of a chance in professional negligence?

Loss of a chance can arise in cases against solicitors if a litigation case has not been pursued in the manner in which it should have been and the party has lost the opportunity to recover damages or compensation. It may be that proceedings were not issued within the limitation period. As a consequence the claimant may have lost the opportunity to recover compensation or damages from a third party. The value of the loss of the chance is based on an assessment of the value of the original claim as well as its prospects of success. For example if a claim for the victim of a road accident was not issued in time by lawyers instructed to act on behalf of the victim then there would be a claim against those solicitors for negligence. The loss suffered would be based on what the claimant might have secured by way of damages from the insurer of the offending driver and his or her chances of winning that claim against the driver.

Do I need a solicitor to pursue a professional negligence claim?

There is no requirement to instruct a solicitor or lawyer to pursue a claim for professional negligence. However there can be complex issues which arise which a specialist professional negligence solicitor will be familiar and able to advise you so that you maximise the prospects of success. Remember you only get one chance at the claim so make sure you have the best advice as to how to win it.

What is the professional negligence pre action protocol?

The Court Rules, known as the Civil Procedure Rules include a Pre-Action Protocol for professional negligence claims which parties are expected to adhere to in claims against solicitors, accountants, financial advisers and surveyors.

The purpose of the protocol is to narrow the issues in dispute, ensure an early exchange of relevant information and documentation, to maximise the prospects of a timely and cost effective settlement of disputes without the need to issue court proceedings.

The Courts can and do impose sanctions against parties who fail to comply with the pre-action protocol.

The professional negligence pre-action protocol details steps to be taken including the claimant sending a preliminary notice of a claim to the professional against whom the claim is made. The professional or its insurers have 21 days to acknowledge receipt of the notice. There will then follow a formal letter of claim which must be in the required form and embody the necessary information as to how the claim arises, the allegations of negligence and the loss suffered. A substantive letter of response must be delivered within 3 months stating whether the claim is admitted, partly admitted or disputed and if so on what grounds. On occasions the professional or its insurers may wish to offer a settlement for commercial reasons and can do so either at this stage or later in the claim.

If there is no offer of settlement or the professional/insurers deny the claim the court proceedings can be issued. However proceedings should not be commenced without careful thought and planning. They are time consuming and can be expensive. It would be prudent to explore other forums for settlement of the claim such as negotiations or mediation.

The court’s ability to impose sanctions for non-compliance with the pre-action protocol for professional negligence is good reason to seek advice from lawyers who have expertise and experience in handling such claims. Insurers have deep pockets and will not hesitate to highlight to the court any non compliance with the pre-action protocol. Be warned!

To read more about our experience and expertise visit our Professional Negligence services page.

Peter Taylor
Managing LLP Partner

T: 023 8048 2276
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