Professionals are required to perform their services to a certain standard and if they fail to do so and this failure causes a loss to you, you may have a claim for professional negligence. A professional can be defined in this context as a person who is considered to have expertise and skills in the services they provide. Claims of professional negligence may be brought directly by clients or alternatively by third parties.
There are a number of requirements in the tort of negligence which must be proved on a balance of probabilities. The burden of proof lies with the Claimant.
- Was there a duty of care owed by the professional to you? You should consider if there was a special, professional relationship between the parties. There is an assumption of a duty of care in certain circumstances, such as in the relationship between a solicitor and their client. You should gather any documents relevant to this relationship, such as the initial retainer or terms of business.
- Has the professional breached this duty of care? A professional breaches their duty where they fail to adhere to the standard of care that is reasonably expected from that professional in those specific circumstances.
- But for this breach, would you have suffered the loss? In short, you must show that the loss that you are complaining of was caused as a direct result of the professional’s breach of duty of care.
- Was this loss reasonably foreseeable? You must consider if the loss was in the contemplation of the parties at the time you entered into a contract, as a probable result of the breach.
You must comply with the Professional Negligence Pre-Action Protocol before issuing court proceedings. In the majority of professional negligence claims, you must bring the claim within six years from the date of the negligence. This date can be extended in certain circumstances.
The court can award damages as a remedy in professional negligence claims. The damages are usually assessed from the date of the breach and aim to put you back in the position that you would have been in had the professional negligence not occurred. Often, professionals are covered by professional indemnity insurance. This means that if you win your claim for professional negligence, you are likely to be able to recover some or all of your losses and legal costs.
It is important that you take steps to mitigate (i.e. minimise) your potential losses. You will not be able to recover damages for any part of your loss that you could have minimised by taking reasonable steps.
If you are looking for advice regarding a potential claim for professional negligence, please contact us on 0203 440 8000 and ask to speak to a member of our dispute resolution team.