Make No Mistake

Monday 10 January 2011

Even the most experienced of people can make a mistake and for that reason claims against professionals for acts of negligence are not uncommon. Mistakes can be easily made but the consequences to a client can be devastating.

The number of claims made against Solicitors, Barristers, Accountants, Surveyors, Estate Agents, Architects and Financial Advisors has increased rapidly since the onset of the recession and this area of litigation continues to grow.

A professional is someone who represents himself as having more than average skills and abilities in a particular field.

To establish a claim in negligence you must prove that the professional owes you a duty of care. Where you engage a professional to provide services, it is very likely that they do owe you a duty of care. They must then have breached that duty.  Liability results from falling below the set standard, which for a professional is set higher than that of the reasonable person, since they hold themselves out as having specialist skills and abilities.  Professionals are judged by the standards of those claiming to have the same set of skills and abilities. A breach is doing something that a reasonable person with the same skills and abilities would not do, or not doing something they would do.

You must also suffer loss and provided that loss was foreseeable and not too remote you should be in a position to recover damages for those losses.  You can be compensated for any loss which you would not have suffered but for the negligence, but you must prove that any loss was caused as a result of the negligent act.

In basic terms, the claim is based upon what should have happened; what did happen; and what has been lost as a result. Professional negligence claims can arise in a number of different scenarios, however, you must prove that the professional has in fact been negligent. This is not always easy. For example, losing a case at trial does not necessarily mean that your Solicitor has been negligent as there may be many reasons for this. On the other hand, failing to include, advise on or advance a particular aspect of a loss in a case (for example, a claim for Damages representing the loss in value for failure to convey a parcel of land with a property) could be an act of negligence.

The Rules require that parties attempt to resolve any professional negligence claims in accordance with a specific Pre-Action Protocol, which allows for allegations of negligence to be made and responded to together with a period of time for the matter to be investigated. Alternative Dispute Resolution (for example a mediation) is often the mechanism by which these type of cases are settled and Court proceedings are seen as a last resort.

Most professionals are required to have in place a policy of professional indemnity insurance. This means that any claim brought against a professional will usually be dealt with by their insurer.

Provided your claim can be established, you should not therefore encounter any difficulties with recovering Damages for your losses.

Claims for professional negligence have a limitation period of six years, during which the claim must be issued at Court, otherwise it will be statute-barred.