What makes a viable professional negligence claim?
What is the difference between a lawyer, an accountant and a surveyor? We would like to say this question is the opening line of a great joke and then sock you with a hilarious punchline. But sadly, we can’t. However, as solicitors specialising in professional negligence claims we can at least impart some legal knowledge and tell you that in terms of legal liability there is very little difference between these professions. Lawyers, accountants and surveyors can all be negligent and they can all be sued for compensation if they get something wrong.
Although any individual can be considered negligent, when it comes to professionals – usually defined as people who are members of a professional body or obliged to hold professional indemnity insurance – it is their professional expertise that is being put to the test.
So what makes a professional negligence claim for compensation viable?
First, you need to show that there was some sort of special relationship between you and the professional. This is usually quite straightforward. If you ask someone to do something for you in their professional capacity and they agree to do so, they will owe you a legal ‘duty of care’ to act to a reasonable standard. Funnily enough, you don’t have to be able to show you paid for their services to establish that a “special relationship” exists. You simply need to show that the professional person knew you would be relying on their advice.
Second, you need to show that the professional breached the duty of care they owe to you. This isn’t generally quite so easy to establish. The fact that you employed a professional in the first place suggests you might not have that expertise yourself and are not therefore in the position to make such a judgement. The test of negligence is whether the professional was acting to a standard that is acceptable to someone who is similarly qualified. In other words, professional people are judged by the standards of their peers. For this reason expert evidence plays a crucial role in professional negligence claims.
Finally, to bring a professional negligence claim you must show that the professional’s breach of duty has caused you financial loss. Again, this can be a tricky hurdle to overcome. Don’t think that simply because you have been left out of pocket this box will be automatically ticked. There needs to be a direct and foreseeable connection between the breach of duty and the financial loss you suffer. For example, if your surveyor overlooked the existence of damp in a property you bought, you may have lost the opportunity of negotiating a reduction in the purchase price. If so, then the differential is likely to be claimable as the loss you have suffered has been directly and foreseeably caused by the surveyor’s oversight. However, if you crash your car upon receiving the builders estimate of what it is going to cost to rectify the damp problem, then you can probably appreciate that the cost of the repairs to your car is a little too remote to claim against the surveyor.
There is one other important thing to consider: The small claims court limit. This is currently £10,000 (December 2020) for professional negligence claims. Most claims with a value that falls below this limit are dealt with using the small claims procedure. This is more informal than the normal county court system, but the biggest difference is that a claimant is rarely able to recover more than a small amount of their legal costs, even if they win and establish that the lawyer, accountant, surveyor or other professional had let them down. This can seem pretty unfair as it puts many people off bringing a legal claim where the loss suffered is under the small claims court threshold. It is therefore very important to consider the value of your case and the commercial considerations of bringing a claim before incurring solicitor’s costs, as you might not get them back.
However, the good news is that if your loss does exceed the small claims court limit we can usually fund the case on a No Win, No Fee basis.
Although professional negligence law can be complicated, it is relatively easy to find out if there you have a valid professional negligence claim. All you need to do is call Slee Blackwell’s free legal helpline. We will be more than happy to have a chat with you and give you a free assessment of any professional negligence claim you think you may have.
The author of this guide to making a professional negligence claim, Emma Slade, has been nominated for the 2020 DASLS Solicitor of the Year Award. You can call Emma on 0333 888 0404 to discuss your case or send an email with brief details to either [email protected] or to Emma personally at [email protected]