Every day, thousands of people rely on professional advice in various areas of their lives. From estate agents advising on property purchases to insurance brokers ensuring that their clients are protected at home, on holiday and in their cars, professionals offer vital advice and perform a multitude of essential tasks on behalf of their clients.
When you seek professional advice from a qualified solicitor, architect, financial advisor, surveyor or insurance broker, you expect their expert guidance to be consistent with the best practice for their particular sector. Unfortunately, in some cases, this advice is misleading or inaccurate – and you may incur a substantial financial loss as a result.
All professionals, whatever their area of expertise, have a duty of care to their clients. If this duty of care is breached, and the breach directly results in any form of financial loss or damage to the client, it may be possible to make a professional negligence claim. These types of claims have become more common in recent years, as individuals become more aware of their rights and gain increased access to professional legal advice.
When making a professional negligence claim, it’s essential to turn to a specialist legal firm with experience of these complex and challenging cases. Your Legal Friend are experts in professional negligence and employ a team of experienced solicitors who deal solely with this type of case. We’re committed to using all our knowledge and expertise to help our clients secure the compensation they deserve.
This guide provides you with helpful information about what constitutes professional negligence, the different types of professional negligence you may encounter and how we can work with you to make a successful compensation claim.
Throughout your claim, Your Legal Friend will help you every step of the way
Proving professional negligence
In order to prove that professional negligence has taken place, you’ll need to provide evidence to support three distinct criteria:
1. You must prove that the professional in question owed you a duty of care.
2. You must prove that the professional’s actions (or lack thereof) breached that duty of care, falling below the standard a client could reasonably expect of a competent equivalent professional.
3. The breach of the duty of care must cause some kind of loss. In most cases, this is financial damage, but there are examples where it could be damage to a property or physical damage to a person.
1. Duty of care
Firstly, you’ll need to prove that the professional in question owes you a duty of care. If there’s a retainer or contractual agreement between the professional and the client, this can be used as evidence of this duty of care. In some cases, there may not be a written agreement or contract to fall back on – but if the professional has claimed to have particular expertise and is offering advice to a client, it can be assumed that they have this all-important duty of care.
In most cases, the claimant is the person who originally instructed the professional – but in certain circumstances, the professional may owe a duty of care to a third party (for example, a solicitor preparing a Will may owe a duty of care to their client’s relatives).
2. Breach of duty
The next thing you’ll need to prove is that the original duty of care was breached by the professional. It’s important to make the distinction here between wrong advice and negligent advice, and it can be challenging to prove that negligence took place if the professional can claim that their advice or actions were the result of a difference in opinion. If the professional demonstrates that they acted in a way that their professional body approves of – even if the advice they gave was technically wrong – they may not be found to be negligent.
In order to establish a clear breach of duty, you must be able to show that their actions or advice fell below the standards one could expect of a reasonably competent professional in the same field – whether that professional is newly-qualified or has been in the business for decades.
3. Causation and financial loss
The last, and possibly the most important, issue for successful claimants to prove is that they suffered some form of financial loss as a direct result of the negligence. If you experienced a financial loss but cannot definitively tie it to the negligence of a professional, you may not have a successful claim. Equally, if you received negligent advice but this did not cause you any financial or other loss, you may not have a successful claim.
It’s also important to be able to prove that the negligence was a key factor in causing the financial loss. Often the loss is caused by a combination of factors, so the claimant has to prove that the professional’s negligence was either the main cause or a significant cause of the loss. If the loss was due partly to the professional’s negligence and partly to the client’s own actions, the Court may reduce the value of the damages to reflect the fact that the client is partly to blame for the losses he has incurred.
Once this link between negligence and loss is proven, attention will turn to the value of your loss. For example, if a surveyor were to significantly undervalue the price of a property which their client goes on to sell at this lower price, the court would calculate the loss based on the true market value of the property at the time.
It’s important to understand that the claimant is expected to reasonably mitigate their losses. If the claimant has increased their own losses as a result of unreasonable actions, they will not recover the value of those increased losses as part of the claim.
Finally, the claimant has a duty to try and keep their losses to a minimum. This is called “mitigation”. So, if the claimant can do something to reduce the amount of their loss, the claimant should do this – for example not having physiotherapy treatment when these would help your recover from an injury. If the claimant does not do this, the court may reduce the amount being claimed to reflect what it would be had the claimant attempted to mitigate their losses.
Other factors to consider
Before you start your professional negligence claim, there are a few factors that you may wish to consider:
If your case is particularly complex, and the professional accused of negligence is likely to defend it until the end, there’s a chance that the legal costs of the claim could spiral. In some cases, this puts the cost of pursuing the claim much higher than the value of the claim. It’s always worth considering how much you’re willing to spend on legal fees and additional costs before seeking to pursue a case.
At Your Legal Friend, we offer a range of payment options to ensure that our clients can select the option most suitable for their budget and their specific claim. We do not offer a no-win, no-fee option for professional negligence claims, so it’s vital to consider the risk factor of your claim before you commit to pursuing it.
Every professional negligence case has a time limit of six years from the date the negligence took place. However, there are a few exceptions which cause this time limit to be extended. If the negligence only became apparent at a later stage, the limitation period becomes three years from the date the negligence became apparent. Regardless of when the claimant became aware of the negligence, there is also a long stop date of fifteen years. We always advise clients to move quickly when seeking legal advice to ensure their claim is made within the applicable limitation period.
What constitutes professional negligence
Professional advice comes in a variety of forms. It may be advice from a qualified solicitor handling a house purchase or a divorce, it could be an architect or surveyor advising on an extension to your home, or it could be a financial advisor managing your investments or pension planning. Whichever professional you engage, you expect their expert guidance to be consistent with the best practice for their particular sector.
However each professional could act negligently in the way they execute your instructions or the quality of the advice they provide. Below are some of the most common types of professional negligence, all of which could result in a considerable financial loss for their clients and open the way for a compensation claim.
Solicitor and barrister negligence
When you instruct a solicitor or barrister to represent you, you expect them to use their professional experience and professional expertise to help you win your legal case.
Unfortunately, there are situations where the negligent actions of a solicitor or barrister can affect the outcome of the case or court action, causing you either a financial loss or other type of damage. If this has happened to you, you could have grounds to make a claim for professional negligence.
Here are just some examples of professional negligence in the legal industry:
If your solicitor or barrister has missed a limitation date or time limit set by the court to file certain documents or make a claim, your case may be thrown out, or you may be prevented from pursuing a claim altogether.
In court, many legal professionals call upon other experts to provide context and supporting evidence for a case. If your solicitor or barrister called the wrong expert, this may have meant that your case was not accurately and completely presented to the court.
Many claims nowadays come with multiple parts – for example, a personal injury case would involve not only a claim for damages, but also for loss or earnings as well as future healthcare and assistance. If your solicitor missed one of these parts, you may not be able to claim for it within your personal injury claim.
If a solicitor or barrister doesn’t identify the correct defendant to issue a claim against, you could make a claim of your own. For example, if you were injured at work and your solicitor mistakenly claimed against your employer when they should have claimed against an equipment manufacturer.
It’s your legal representative’s duty to thoroughly investigate all evidence that may support your claim in court. If they do not, they could miss a vital piece of evidence that has a detrimental impact on your claim.
If your solicitor provides incorrect advice on After The Event insurance or other relevant funding to your case, they may be found to have been professionally negligent.
You may feel that your legal representative did not represent you well enough in court – perhaps they did not prepare the right papers for court, or sent someone to court who did not know your case well enough to represent you properly.
If your solicitor settled a claim which was subsequently found to be worth much more, you could make a claim against them for the difference.
These are just some of the main ways in which a legal representative could be professionally negligent. If you feel your legal case was mishandled in any way, our expert professional negligence solicitors are happy to discuss your case free of charge so you can decide whether to proceed with a claim.
Property solicitor and conveyancer negligence
Buying or selling a property is one of the biggest transactions you’ll make in your life – and it’s reasonable to expect that your solicitor or conveyancer will provide you with the advice and support necessary for you to complete that transaction to your benefit.
Unfortunately, there are situations where solicitors and conveyancers act negligently, causing enormous financial losses. In these instances, you may be able to make a professional negligence claim against them.
Solicitors and conveyancers can be negligent in a number of ways, including:
A defective title could cause the title to be declared invalid, which then raises the question as to who is the true owner of a property.
Leases are binding legal documents, with the need for very precise legal wording. If your solicitor has made an error in drafting a lease, it could leave a loophole for a tenant to escape the tenancy or get away without paying rent.
A failure to advise you about certain restrictions on the property, the relevant planning permissions, or building regulations could have catastrophic consequences. It may mean you have to tear down an extension, or even an entire property.
Co-ownership is a popular ownership model nowadays – but incorrect advice could jeopardise the entire transaction and leave you with no real claim to a property.
When you hire a solicitor to manage your property transactions, there’s an expectation that they follow your instructions rather than acting for themselves. If a solicitor has exchanged contracts with another party without your express permission to do so, they may have acted negligently and you could be entitled to make a claim.
If you’ve completed the purchase of a property, only to discover that an outbuilding, a garage, or a piece of land that you believed was included in the sale was not actually part of the deal, your solicitor or conveyancer may have acted negligently.
If you’ve experienced any of the above issues, or believe your solicitor or conveyancer has acted negligently in any other way, Your Legal Friend could help you to make a professional negligence claim.
Architects, estate agents, valuers and engineer negligence
Architects, estate agents, engineers, surveyors and valuers play an integral role in the purchase or development of property. With so much at stake, it’s reasonable to expect that these highly trained professionals will provide you with the right support and advice, whether you’re buying or selling a property, embarking on a new build or making improvements to an existing property.
Unfortunately, there are instances where the negligence of these professionals has caused enormous financial losses to ordinary individuals – and in these cases, there may be grounds for a professional negligence claim against them.
Here are some examples of the ways in which architects, estate agents and other professionals working in the property industry can be negligent:
If an architect provides plans which are inaccurate or defective in any way, it can compromise the construction or development of an entire property, risking not only financial loss but also health and safety concerns.
When instructign an estate agent to sell your property, you expect them to do their utmost to market the property and attract the interest of potential buyers. If this hasn’t been done, and the sales particulars have not been distributed, you could be able to make a professional negligence claim on the grounds that you are losing money while waiting to make the sale.
Valuers, surveyors and estate agents are expected to provide accurate, up-to-date advice and estimates on the market value of properties. If a surveyor values a property at more than 10-15% above or below the correct value, they could be found to be acting negligently.
A tenant without proper references could put a landlord at risk of fraud or financial loss. If an estate agent managing a lease has failed to obtain the required references, their client could hold them to account for professional negligence.
If an engineer or architect has completed work which was inadequate and so required costly remedial work to rectify the mistakes, you may be able to make a professional negligence claim against them to recoup your losses.
Time is money in the world of property, and if an architect does not manage a build or development properly, it can result in missed deadlines and financial losses to the client.
Planning permission is an essential part of building or extending any property, and if an architect or surveyor has failed to obtain this permission from the local authority, the entire project could be put at risk. Some unfortunate individuals have had entire new build properties pulled down because of their failure to comply with planning permissions.
Estate agents are responsible for informing their clients how much Stamp Duty is required on the sale of a property. If this amount is incorrect, it could result in the client paying more further down the line.
Handing over your financial information to an accountant means putting a great deal of faith in them as professionals. As a client, you trust them to act in your best interests, using all of their skill and experience to ensure your finances are well organised and your tax obligations are met.
Unfortunately, accountants are not immune to making mistakes – and when an error is made in a tax return or your company accounts, the consequences can be immense. Despite the various codes, regulations and rules which govern the financial sector, mistakes can be made, leading to real financial losses on the part of the client.
Here are some examples of scenarios where a claim may be warranted:
As a client, you have a reasonable expectation that your accountant will complete your tax return correctly and comprehensively. If they don’t, and you’re saddled with a fine or an enormous tax bill, you may be able to claim for professional negligence.
It’s essential that your company accounts are in order at all times, and if your accountant makes any mistakes or errors in preparing them, it could mean you incur a financial loss.
If your accountant is late filing an important document to HMRC and you incur a fine or a penalty as a result, you’d have grounds to pursue a professional negligence claim against your accountant.
If you discover that your accountant has made a mistake in your tax returns which has ended up with you paying more tax than was necessary, you could make a claim for professional negligence.
If your accountant misses a company filing deadline and you end up incurring a financial loss (through a fine or a penalty), you could bring a professional negligence claim against them.
Financial advisor negligence
Independent financial advisors (also known as IFAs), financial consultants, and other brokers all owe their clients a duty of care. When a client instructs or hires them, they have a reasonable expectation that the IFA will use all their skill and competence to secure a positive financial outcome for them – and with so many rules, regulations and codes to comply with, you should feel safe and satisfied that your IFA will do all of that for you.
Unfortunately, there are some financial advisors who make mistakes in their work – and if those mistakes have a negative impact on your finances, you may be able to make a claim against them.
Here are some examples of professional negligence among financial advisors:
If you receive bad investment advice from your financial advisor, and it negatively affects your finances, you could bring a professional negligence claim against them.
All good financial advisors will take into account your attitude to risk – but if they offer advice that is either inconsistent with this or does not take it fully into account and it results in you losing money, you could recoup your losses via a professional negligence claim.
If the value of one of your investments has dropped significantly or become close to worthless, you could bring a professional negligence claim against the advisor who recommended the investment.
If you’ve been informed that an investment is distinctly low risk, it’s natural to want to see returns, even if they’re small. If you experience losses on an investment that you were assured was fairly low risk, you may be able to bring a claim against the advisor who recommended it.
If your financial advisor advised that you invest in a product that was unsuitable for your needs – which coincidentally had the side-effect of earning them a large commission – you could bring them to court for professional negligence.
Financial advisors are also on hand to offer advice on the right pension or annuity for you – but if the advice given to you was incorrect and you’re now unable to claim your enhanced annuity as a result, you could be eligible to make a professional negligence claim.
If you’ve been affected by any of the issues listed above, or if you feel that your IFA has acted negligently in any other way, our expert team of specialist professional negligence solicitors could help you recoup your losses.
Having an insurance policy for your home, car, business, health or forthcoming holiday is supposed to give you peace of mind, knowing that any unexpected costs or outlays will be covered. Insurance brokers are experts at finding the right policies with the appropriate cover for clients, ensuring that the protection they need is in place.
Unfortunately, some insurance brokers act negligently, and it can leave clients seriously out of pocket when it comes to making a claim. If you’ve been left facing financial losses as a result of an insurance broker’s actions, you may be able to claim for professional negligence.
There are a number of ways in which an insurance broker could act negligently:
If you have to claim on your insurance, only to discover that your insurer never took out the policy, despite taking your money, you could bring them to court for professional negligence which, if successful, would see you recoup your costs.
Before you take out an insurance policy, it’s the responsibility of your insurance broker to ensure that you fully understand the key terms and restrictions and that the policy still meets your needs. If your broker has failed to advise on any restrictions, they may be to blame if any future claims you make are rejected.
For insurance policies which require regular renewal, your insurance broker must inform you of the renewal dates so that you can act in a timely manner and ensure that your cover is unbroken. If the broker does not advise you of these dates, and you end up in a period without insurance, you could claim against the broker.
If the information passed onto the insurer does not match up with your own personal details, they’re well within their rights to refuse any claim. If your broker has passed on inaccurate information about your cover or your circumstances and this information has then invalidated your insurance, you could bring a professional negligence claim against the broker in question.
If any of the issues above sound familiar to you, or if you suspect that your insurance broker has acted negligently, we could help you win the professional negligence compensation you deserve.
Professional negligence – 10 simple steps to achieving your compensation
For most people, a compensation claim isn't an everyday occurrence so here is a brief explanation of how we manage your claim and the 10 steps we and our clients need to go through together.
Step 1 - Understanding what went wrong
Our initial in-depth discussion with you helps us collect important information about your claim, such as what you feel went wrong, the financial or other losses this caused you and when you first found out about this.
Step 2 – Reviewing relevant documents
We’ll review all your documents and other information, including any that the professional holds, which will then enable us to give you our expert opinion on the strength of your case and the likely value of your claim.
Step 3 – Obtaining an initial response to your grievance
If your case is strong enough to proceed, we’ll send a Preliminary Notice to the professional involved, setting out the basis of your grievance and the claim you are intending to make. The professional then has 21 days to respond.
Step 4 – Sending the Letter of Claim
Once we receive a response, we’ll prepare the detailed Letter of Claim and send it to the professional, along with any relevant documents that support your case. This letter will set out the facts upon which your claim is based, the allegations against him or her, an explanation of how this has caused you loss, the estimated value of this loss and details of how this has been calculated.
Step 5 – The professional’s detailed response
The professional has 3 months to investigate and fully respond to our letter. They must provide their answers to the allegations you have made, identify which they admit or deny, send us copies of any documents they wish to rely on, and provide details of any further information needed from you.
Step 6 – Taking a detailed statement
We will work with you to draft a detailed, accurate statement in your own words about your claim and the losses that you are now looking to claim for. We may also need to take witness statements from other people who can support your case – for example your family members.
Step 7 – Obtaining experts’ reports
Depending on the nature of your claim, we may need to engage one or more experts to provide a report to support your case - for example, if you have long term injuries. Once the experts’ reports have been received and agreed by you, we will send a copy to the professional you are claiming against.
Step 8 – Issuing court proceedings
If your case has not been settled, we may need to issue court proceedings against the professional so we will deal with all the detailed court processes on your behalf.
Step 9 – Attending your court trial
If your case does go to trial, you will need to attend the hearing, together with any other witness and possibly the experts we instructed in the case. If the judge decides that the professional was negligent, the judge will decide on the amount of compensation you will receive for your losses. The defendant will usually be ordered to pay us the costs we have incurred in preparing your case, including court fees and expert reports.
Step 10 – Awarding your compensation claim
If you are successful in your case, we will agree a date by which your compensation will be paid to us so that we can pay your compensation to you as quickly as possible.
How long does a claim take?
Because the circumstances surrounding every claim and their effects are different, it’s very difficult to give a definitive answer on how long it takes to settle a claim. Often it depends on how quickly our clients provide us with essential information, how quickly we can get your file of papers from the professional and any expert reports required, and whether the insurance companies are willing to provide realistic offers to settle the claims.
Whilst we aim to settle your claim as quickly as possible, we also want to ensure we secure the maximum compensation for you. This often means we have to do some hard negotiation with the defendants – which takes extra time. Our aim is to balance progressing the claim as fast as possible with getting you the maximum settlement.
We realise that you’ll be keen to know about the progress of your claim so we will send you regular emails and texts to keep you up to date, and also to remind you if there is any information we’re waiting for from you.
Frequently Asked Questions
1. Who can I bring a professional negligence claim against?
A Professional negligence claim can be brought against any professional who provided you with a service. Examples of such professionals can include, but not limited to, the following: Solicitors; Barristers; Accountants Surveyors and Architects
2. What losses can I claim from my professional?
You are entitled to claim back from your professional any losses you have suffered as a direct consequence of the professional’s negligent conduct provided it can be demonstrated that those losses are attributable to the actions of the professional.
3. What must I prove to bring a successful professional negligence claim?
You must demonstrate the following to bring a successful claim:
4. How long do I have to bring a claim?
You must issue Court proceedings within six years from the date on which the cause of action/breach of duty accrued, or three years from the date on which you learned or should have learned that you were likely to have incurred a loss. There is a long-stop period of 15 years in which you must bring your claim, this is regardless of whether you knew about the negligence or loss. Failure to commence Court proceeding within this period will mean you are likely to lose your right to claim damages and, therefore, you will run the risk of not receiving compensation from the negligent professional.
5. How long will my claim take?
It can be very difficult to estimate how long a claim for professional negligence will take from start to finish, as each claim is unique in relation to the parties and issues involved.
There is however a Professional Negligence Pre-Action Protocol which applies to most professional negligence claims, and a Construction and Engineering Pre-Action protocol which applies to professionals in the construction industry.
It can take over a year for the pre-action protocol itself to be exhausted, should further evidence or expert reports be required. In the event Court Proceedings are necessary, it may take over 2 years from when the claim was first intimated for the case to reach trial; however very few claims reach the stage of trial.
6. Will I need to go to Court?
Very few claims reach the stage of trial, as most matters settle pre Court hearing. Your legal representative will endeavor to settle your matter as quickly as possible prior to trial. However, as a matter of best practice, if Court proceedings do become necessary in your case, you should proceed on the assumption that the case will go to trial.
7. How will I fund my case?
There are multiple ways in which you may fund your case.
A Conditional Fee Agreement means that we are able to take on your claim without having to ask you for money on account of costs. We would only be paid for the work we do if your case is successful and would earn nothing if the case is lost. If your claim is successful, in exchange for us taking the risk of not being paid for any of our work if you are unsuccessful, we are entitled to a “success fee” if you win. The success fee will be deducted from your damages should your claim be successful.
If you have taken out a Legal Expense Insurance Policy, subject to the terms and conditions of the policy, this could cover your legal fees and the legal fees of the Defendants if your case does not succeed. On acceptance of your case, we advise you to check all insurance policies you have including motor and household insurance to see whether you have such cover.
If you decide to fund your claim privately, we would ask for you to pay money on account of the cost of disbursements and would submit monthly bills for payment of our costs.
8. What Should I do next?
To commence your claim against a professional, contact our Professional Negligence department on 0151 649 3047