In this introductory guide to professional negligence claims, we provide answers to many of the key questions we frequently get asked.
What is professional negligence?
Professional negligence is a generic term used to describe the legal claim that arises when a professional adviser makes an error or mistake.
The claim itself may be based on one or a number of legal grounds, such as breach of contract, negligence, breach of trust, breach of fiduciary duty or breach of statutory duty.
Can I make a professional negligence claim?
If you or your business has suffered a financial loss as a result of an error or mistake made by a professional adviser then you may well be able to make a claim.
For you to make a claim it is not necessary that you know the precise nature or amount of the financial loss that you have suffered, although this can be helpful. The nature of the loss you can recover and the value of your claim can be (and may need to be) determined at a later date.
It is also not always necessary in order to make a claim, for the loss you or your business has suffered to have been caused by your own professional adviser. In certain circumstances, you may be able to make a claim against a professional adviser instructed by someone else. We explain this in more detail in our article: Third Party Claims for Professional Negligence
Even if the firm or practice at fault is no longer trading or has been dissolved, it may still be possible to make a claim and recover compensation. The support available to claimants in these circumstances is explained in our article: Claims against closed professional firms and practices
For what losses can I be awarded compensation?
This will depend in large part on the nature of the task the professional person was instructed to undertake and what losses were caused (both as a matter of fact and law) by the mistake made. In appropriate circumstances, the courts have been prepared to award compensation for a wide range of different types of losses including, for example, loss of profits, mental distress, costs of reinstatement and loss of management time.
A substantive guide to the different types of compensation commonly awarded in professional negligence claims can be found here: Compensation for professional negligence: What can I recover?
Am I required to do anything to mitigate my loss?
Quite possibly. If you have sustained financial loss, you should take all reasonable steps to mitigate that loss and take no unreasonable action which would exacerbate it. Should you fail to do so, the court is likely to prevent you from recovering compensation for that loss which it considers was unreasonably incurred.
This ‘duty’ can lead to much confusion and uncertainty and further guidance on it can be found in our article: The duty to mitigate in professional negligence claims
How do I make a professional negligence claim?
Most claims are commenced by following the procedures set out in the Professional Negligence Pre-Action Protocol. A copy of this can be found here. In some cases, it may also be necessary to institute court proceedings.
Where the negligent professional is employed by a company or partnership, any claim will usually be directed towards the employer. However, in certain circumstances, it may also be possible to pursue a claim against an employee personally. This is discussed in more detail in our article: Personal liability of employees: An emerging issue
Do I need to instruct a solicitor?
You are not required to instruct a solicitor to advise and represent you, but it is usually sensible to do so. Professional negligence claims are often complicated and time consuming and a successful outcome can very much depend on the way in which a claim is presented and pursued.
To help you decide between instructing a solicitor and going it alone, we identify and comment on some of the key factors you should consider in our guide: Professional negligence claims – Do I need a solicitor?
If you do decide to instruct a solicitor, you would do well to instruct one who genuinely specialises in professional negligence claims. While an increasing number of solicitors claim to undertake work in this area, there are relatively few true specialists. To assist you in identifying the best solicitor to act for you in relation to your claim, we have highlighted seven key features to consider as part of any search in our guide: Professional negligence solicitors: How to find the best
What should I do if there are potentially multiple defendants?
Where multiple professionals are retained, it is not uncommon for more than one of them to have made a mistake that has caused or contributed to the financial loss you have suffered. This commonly arises in litigation, where clients instruct solicitors and barristers, and in conveyancing, where clients instruct solicitors and surveyors.
Deciding which of these professionals to sue can be a complex decision involving legal and commercial considerations. These are explained in more detail in our article: Multiple defendants in professional negligence: Which to sue?
How much will it all cost?
The cost varies enormously from one claim to another and is affected by so many different variables. The complexity of the claim, the volume of documents relating to it, the need for expert evidence and the response of the defendant are just a few of the factors that can have a bearing on cost.
Fortunately, there are an increasing number of ways in which to fund a claim and more information on this particular topic can be found in the section: Fund a Claim
Can I also claim for my legal costs?
If the value of your claim exceeds £10,000 and if it is successful, then you can usually seek an agreement or court order requiring the defendant to pay your legal costs. How much of your costs the defendant may have to pay depends on a number of factors and while it is usual to awarded the majority of the costs incurred, it is rare to be awarded all of your costs.
Will I be able to physically recover any compensation and costs awarded to me?
The financial standing of a defendant should always be considered before making any compensation claim. Fortunately, in professional negligence claims, most defendants carry professional indemnity insurance to meet any compensation and/or costs awarded against them. Consequently, the prospects of making an actual or physical recovery are often much better than in many other areas of litigation.
The benefits of professional indemnity insurance for claimants and how it operates in practice are explained in more detail in our guide: Professional Indemnity Insurance: A Claimant’s Guide
How long will it take?
This invariably depends on a range of factors, including the nature and complexity of the claim and the way in which it is presented and pursued. If the claim is straightforward, it is possible that it could be resolved within 3 months. However, a more usual time-frame is 6 to 12 months. A hotly contested claim may take considerably longer to resolve.
Will I have to go to court?
Not necessarily. The vast majority of professional negligence claims are resolved without having to go to trial. Many of these are resolved under the Professional Negligence Pre-Action Protocol and without the need for court proceedings to be commenced.
Are there time limits for bringing professional negligence claims?
Yes. There are specific time limits for commencing professional negligence claims and these are strictly enforced. Generally, you have 6 years from the date on which either the mistake was made or you suffered financial loss. However, you may have 3 years from the date of discovering the mistake, if later.
We have produced a short guide to the time limits that apply to professional negligence claims: Time limits for professional negligence claims – FAQs. We have also written two further articles highlighting the dangers in this area, which are available here and here.
What should I do next?
If you think you might have grounds for making a claim for professional negligence it is often worth contacting a solicitor who specialises in this field. Most will be happy to have an initial conversation with you, free of charge.
If you would like to arrange an initial consultation with us, free of charge or commitment, please do not hesitate to contact us on 0800 195 4983 or by email at firstname.lastname@example.org.
As you can discover here, at PNC Legal there is much more than just the fact that we specialise exclusively in resolving claims for professional negligence that sets us apart from most other solicitors.