Professional negligence

The thought of having to stand up in a court room in order to recover your losses can be a very daunting prospect. But litigation is often the last resort and many claims settle long before reaching trial. There are many different “Alternative Dispute Resolution” (ADR) options available that can be used to attempt to settle a claim, including mediation, arbitration and negotiation. These may be more cost effective than proceeding to trial. Our lawyers have vast experience of successfully settling cases via ADR and will advise you whether this option may be appropriate for your case.

There are time limits that apply to bringing a claim in professional negligence. Generally, if you wish to pursue a professional negligence claim it must be brought within six years from the date of the breach of contract (in a claim for breach of contract), or within six years from the date when the damage is suffered (in a negligence claim).

If, however, the document that formed the contract was written as a deed then it is possible that the relevant time limit for bringing a claim is 12 years. For example, if your accountant negligently prepared your annual returns on 1 January 2017 then the breach occurs in contract on the date on upon which the negligent act occurs, i.e. 1 January 2017. You would have until 31 December 2023 to bring a claim. However, if your loss only accrued when those accounts were filed which resulted in you paying more tax than you should have, then the date of loss will be the date on which you made the payment. If that payment was made on 1 May 2017, then you would have until 30 April 2023 to bring a claim. If, however, you did not become aware of your loss within the initial six year limitation period then it may be possible to bring a claim after the initial limitation period has expired. In these situations, you may be able to bring a claim within three years of the “date of knowledge” of the negligent act, providing the claim is brought within the “longstop” period of 15 years.

In addition, different time limits apply for professional negligence claims involving personal injury, or negligence in respect of latent damage not involving personal injury. Bringing your claim within the relevant “limitation” period is the essential first step to bringing a successful claim. The rules can be extremely complex and full of pitfalls. It is therefore important to seek legal advice as early as possible to ensure that you are able to bring a claim.

No, not necessarily. As a general rule, the default position is that the unsuccessful party in the litigation will be ordered to pay the successful party’s costs. However, it may be possible to purchase appropriate insurance cover to negate the risk of having to pay the other side’s costs. We have extensive experience in obtaining appropriate cover and have links with a wide range of After the Event insurance (ATE) providers who may offer insurance that will ring fence these adverse costs from the outset of a case. ATE is a type of legal expenses cover taken out after a dispute had arisen and is designed to protect against the risk of having to pay an opponent’s legal costs if you are unsuccessful in your claim. The policy is usually taken out prior to proceedings being issued and before any significant legal costs or disbursements are incurred. In some circumstances the cover can also be extended to cover your own disbursements incurred during the litigation process such as your own counsel and expert fees. The level of cover is determined on a case by case basis by the insurance providers. The application process involves supplying the insurance provider with full details of the claim and a view on the likely prospects of success. This assessment will be undertaken by us and counsel during our initial review of the claim. We can therefore complete the application process for you and obtain quotes on your behalf.

There are many different options available for funding a claim. We have outlined some of the most common funding options below: Many clients choose to fund their cases privately. In these circumstances, we will charge a standard hourly rate (agreed with you at the start of the case) and you will be required to pay this regardless of the outcome of the case.

If you are funding the case privately, you should consider your exposure for both your own legal costs as well as any liability for your opponent’s costs before bringing a professional negligence claim. You will only become liable for an opponent’s costs once court proceedings have been commenced and if you were ultimately to lose or discontinue the action.

Alternatively, it is possible to fund a claim using Conditional Fee Agreements (CFA’s). These arrangements are commonly known as “no win, no fee”. Under the terms of a CFA, our fees will only be payable if the claim is successful and the majority of these costs will be met by the losing party to the action. If, however, you lose the case you will not be liable for our fees and any expenses that are subject to the CFA (although you will be required to pay your opponent’s costs). 

We will determine the merits of any potential professional negligence case at the outset and should the prospects of success appear favorable to you, your case can qualify for funding via a CFA. It is also possible that you may have legal expenses cover under an existing insurance policy, such as your household insurance policy, or your motor vehicle insurance policy. This is known as “Before the Event Insurance”. If you think your legal expenses may be covered by such a policy then please provide us with a copy of the insurance policy when we initially discuss your claim and we will assess whether this may be an option. We are happy to discuss the circumstances of your case with you and identify the most flexible and appropriate way to fund and run your case.

Professionals are required to exercise reasonable skill and care when acting on any matter. Occasionally the work carried out by the professional falls below the standard that is reasonably expected and as a result of the poor level of service an individual may suffer a financial loss. In order to bring a successful professional negligence claim you will need to demonstrate the following:

1. you were owed a duty of care by the professional;
2. the professional breached that duty; and
3. the breach of duty by the professional has caused you to suffer a direct financial loss.

In addition to those listed above, there are many other professionals, who if their service falls below the required standard of care, may cause loss to their clients. A number of professionals are facing an increasing number of claims in the event that they are negligent. These include:

• LEAs;
• Trade unions;
• Advertising and media consultants;
• Expert witnesses;
• Insurance brokers;
• Estate agents;
• IT consultants.

Please call us if you think you have a potential claim.