How to claim professional negligence

Jan Samuel  11-09-2017

Most people have to rely on the advice of a professional at some point in their lives. Very often, this will happen when you are buying or selling a property. In those circumstances, you have to rely on the professional advice of solicitors and surveyors. It is also increasingly common for individuals and businesses to take financial advice from professional advisers.

There are several elements to bringing a successful professional negligence claim, detailed as follows.

First you need to establish that the professional owed you a duty of care. There can be very little argument that professionals such as surveyors, solicitors, and financial advisers, owe their clients a duty of care.

Once you have established that the professional owed you a duty of care, you next have to show that the professional has breached that duty. It is not enough to be able to show that the professional has provided you with a poor service. For that service to have been negligent, you have to be able to show that the service fell below that which you were entitled to expect from a reasonable professional in that field.

  • Examples of solicitors' negligence: missing a court deadline or failing to advise about issues with the title or boundary of a property.
  • Examples of surveyors' negligence: valuing the property wrongly, or failing to identify structural issues with the property.
  • Examples of financial advisers' negligence: failing to advise about tax exemptions which might be available to you, or providing you with poor investment advice.

Once the duty of care, and the breach of that duty have been established, it is necessary to be able to demonstrate that you have suffered financially as a result of the breach. This is called "loss".

If you can prove that a professional owed you a duty of care, that they breach the duty of care, and that the bridge has caused you loss, it is likely that you would have an actionable claim against that professional.

The first step you need to take is to write to the professional, outlining your concerns. This is best done by reference to the professional negligence pre-action protocol, which sets out the information which should be given to the professional, and also gives guidelines about how long they have to respond.

The professional will then send you a response. They may agree that they have been negligent and suggest proposals for settlement. Alternatively, they may disagree and raise any number of defences to your claim.

Examples of defences to professional negligence claims:

  • Limitation - if you have not started your claim in court within six years of the date the professional breached their duty of care to you, you will have lost your right to do so. There are limited circumstances in which this deadline can be extended.
  • Causation - the professional may admit that they have been negligent, but could say that this has not caused your loss. They may say that even if they have provided you with the correct advice, you would not have followed it.
  • Non-negligence - the professional may simply respond saying that the advice they provided was correct and therefore not negligent. In the circumstances, you are very likely to require expert evidence to support your case.

At Samuels Solicitors, we have a niche specialism in dealing with professional negligence claims. We are able to assist clients with the pre-action protocol procedure, as well as court proceedings should this become necessary, and mediation try to settle disputes.

If you feel that you have been let down by a professional, contact us today for a no obligation discussion about how we can help you with your claim.