Every day people up and down the country are consulting professionals for the paid use of their skill. Whether it is a surveyor, an architect, an accountant or indeed a lawyer who possesses such a specialised expertise, all owe a duty of care to provide a service according to the accepted professional standard. Professional negligence- or ‘professional liability’ as it is more accurately termed- arises where that duty is breached in such a way as to cause damage to be suffered by the client. A successful claim entitles the client to financial compensation from the negligent professional.
PLEASE NOTE: Neil Hudgell Solicitors no longer deal with this type of claim. This is an historic blog article to be used for reference only.
However, it is far from straightforward for the everyday person to identify a case of professional liability. After all, (despite best efforts) interactions with professionals do not always go as planned; a surgeon may fail to cure you just as a barrister may fail to win your case. Dissatisfaction alone does not necessarily mean that there is a legal case to bring against the said professional. Nonetheless, there are some basic issues to identity if you are in a situation where you suspect that a professional might have fallen short of their professional duty;
(1) Were you dealing with a professional; someone who has a particular specialised skill such as an engineer or a tax consultant?
(2) Did the professional’s behaviour fall short of the standard of care of the reasonably competent member of the same discipline ? This question is often the most difficult to answer, depending as it does on a detailed knowledge of the specific profession. Whereas the standard of care in ordinary negligence cases can be determined according to “the man on the Clapham omnibus” professional liability cases are determined by reference to members of the profession concerned. This will obviously vary according to each individual case and will often require expert opinion to determine.
(3) Did that breach of professional duty cause you to suffer damage such as personal injury, economic loss or damage to property? Ordinarily the remedy will be to try and put you into the position that you would have been in had the breach of duty not occurred, although this will again depend on the particular case and the particular loss. The loss concerned will generally have to be ‘reasonably foreseeable’ for it to be recoverable.
Crudely speaking, answering ‘yes’ to each of the above three questions will indicate that the bare bones of a professional liability case are present. For example, if you have instructed a solicitor to act in a case where they were responsible for issuing court proceedings against another party, but they missed the limitation deadline, there would be clear ‘yes’ answers to the first and second questions. Whether there is a ‘yes’ answer to the third question would be a more difficult question to answer, depending on factors such as the prospects of the case being successful in the first place. After all, it is often difficult to ascertain whether a person should be compensated for the full value of the case lost by the failure to bring the action, or alternatively awarded a sum of money to represent the loss of chance of bringing the claim. Given this and the many other complexities present in such cases, any prospective case of professional negligence is best taken to specialist solicitors who will be ideally equipped to give bespoke and clear advice on the details of your individual case. Practical matters that are likely to assist in determining your case with legal input will include;
(a) Is there a written contract between you and the professional? If so, it is very important to bring this to your solicitor’s attention along with any similar relevant documentation that will help to determine the scope of the duty.
(b) When did the alleged loss occur? This is critical given that there is a general 6 year limitation period for bringing a claim, although claims for personal injury are subject to a shorter 3 year time limit.
(c) Have you already obtained any expert opinion or evidence on the issue? This may well assist with determining liability.
Remember that instructing solicitors does not always mean that you will end up going to court. It is increasingly common for matters to settle swiftly and inexpensively using ‘Alternative Dispute Resolution’ such as Mediation or Early Neutral Evaluation. Lawyers are also far more likely to be able to help settle your case by following the ‘pre-action protocol’ to identify areas of dispute, instruct a joint expert and to generally safeguard your best interests . Ask your solicitor for more details.