Professional negligence is where a professional fails to perform his responsibilities to the required standard. For businesses, this is most commonly where a professional advisor, such as a solicitor, accountant or surveyor, gives incorrect or incomplete advice or fails to act, for instance by missing a deadline.

A claim for professional negligence can brought against any professional advisor but most the most common are claims against solicitors, barristers, conveyancers, surveyors, valuers, architects, builders, accountants, engineers, financial advisors, insurance brokers, will writers and local authorities. In many cases, professional advisors will have professional indemnity insurance to cover such claims, even if they are no longer trading (known as “run off cover”).

Negligence is more than just poor service by a professional advisor. In order for a claim to succeed it is necessary to show that the professional owed a duty of care, that they breached that duty and that this caused a loss. A professional advisor will usually owe their client a duty of care. The standard required of a professional is not one of perfection and the mere fact of an error does not necessarily constitute negligence. A professional will only breach their duty of care by making an error which no reasonable member of their profession, in their circumstances, would have made. Even then, a professional may have acted negligently, but a claim will only succeed if their actions or advice caused the loss suffered by the business. For issues of poor service, most professional advisors will have their own complaints procedure or a complaint can be referred to a professional or trade body, such as the Legal Ombudsman for solicitors or barristers, the ICAEW for accountants or the Royal Institute of Chartered Surveyors (RICS) for surveyors.

Any financial harm suffered by the business as a result of the professional’s negligent actions or advice. Damages can be claimed as compensation for loss of profit, wasted costs or expenditure, diminution in value (or difference in value) of goods, property or other assets, cost of replacement or repair, other financial or economic loss, and, in some cases, wasted management time. The basic measure of damages is found by comparing what the position of the business would have been if there had been no breach of duty and its actual position.

In most cases a claim must be brought within 6 years from the date of the negligence. However, in cases where the negligence only becomes apparent at a later stage, this may be extended to 3 years from the date of knowledge of the facts which might give rise to the claim. There is a long-stop date of 15 years. After these limitation periods expire any claim will be statute barred and cannot be pursued. It is therefore important to seek legal advice quickly if you think your business may have a claim for professional negligence.

We offer an unparalleled range of flexible and innovative funding options, including (in appropriate cases) conditional fee agreements (CFAs) (known as “no win, no fee” agreements), discounted CFAs (known as “no win, low fee” agreements) agreements, fixed fees and competitive hourly-rate fees. We also work with leading legal expenses insurers to provide “after-the-event” (ATE) legal expenses insurance to cover the risk of having to pay costs to the other party (and your own expenses) if your claim is unsuccessful and disbursement funding to pay expenses such as court fees and expert fees.

The Pre-Action Protocol for Professional Negligence sets out the steps the court would normally expect parties to take before commencing proceedings. The court can impose sanctions (including on costs) for failing to comply with its provisions. It is designed to allow parties to exchange information and try to settle claims without the need for court proceedings. The claimant is expected to send a “Letter of Claim” setting out full details of the claim and providing any relevant documents. The defendant then has up to 3 months to consider, investigate and respond with a “Letter of Response” confirming whether the claim or any part if it is admitted, setting out its detailed response to the claim and providing any proposals for settlement. This may be followed by further correspondence or in some cases Alternative Dispute Resolution (ADR) such as mediation. If the claim is not settled, proceedings may then be issued.

Every professional negligence claim is different and the timeframe can vary.