As true specialists in our field, we act for clients nationwide in claims for accountant negligence and auditor negligence, as well as in claims against other professionals.
Resolving professional negligence claims against accountants
From the outset, we focus not on making professional negligence claims on behalf of our clients, but on resolving them. In this way, we ensure that ours is a broader perspective and a more open mind.
Moreover, and by harnessing:
- Our wealth of experience acting in claims against a wide-range of professionals
- Our unique insight into the defence of claims for accountant negligence
- Our commitment to providing a client-centric service as part of our core values
- Our innovative and highly efficient service provision
we ensure that our clients achieve better results for substantial claims, time and again.
The accountancy profession
Unlike the term ‘solicitor’, whose usage is regulated by statute, there are no restrictions on the use of the term ‘accountant’. This means that anyone can badge themselves as an accountant and, as a consequence, the standard of service provided to clients across this profession is much less assured.
However, that is not to say that the accountancy profession is entirely unregulated. It is not. A large number of accountants are governed by such bodies as the Institute of Chartered Accounts of England and Wales (ICAEW), the Association of Chartered and Certified Accountants (ACCA) or the Chartered Institute of Management Accountants (CIMA), each of which aims to ensure that its members maintain the highest standards of professional service and conduct.
Common mistakes by incompetent accountants
Historically, claims for accountant negligence were relatively limited in number, with a significant number of the claims that were made arising from company audits. However, in recent years, not only has there been an increase in the volume of claims accountant negligence, but also in the variety of accountancy services that give rise to them. Indeed, some commentators predict that the volume of claims for accountant negligence is only likely to increase, as the profession attempts to undertake more advisory work and more of the sort of legal services traditionally provided by lawyers, such as will writing, estate administration and litigation.
Some common mistakes that can give rise to a successful claim for accountant negligence are:
- Failing to prepare accurate statutory accounts, resulting in a material mis-statement
- Failing to comply with filing deadlines
- Failing to warn of the risks associated with aggressive tax avoidance schemes
- Failing to warn of changes in tax legislation
- Failing to advise correctly on the need to register for, or the treatment of, VAT
- Failing to advise on allowances and exemptions available to mitigate tax
- Failing to detect and report incidents of fraud as part of a company audit
- Failing to identify accounting irregularities as part of a share purchase valuation
- Failing to correctly value the goodwill of a business
Even where a mistake is made by a negligent accountant instructed by someone else, if financial loss is suffered as a consequence, a claim for compensation may still be made in appropriate circumstances. This situation can occur where shareholders rely on the advice given to the company and is explained in more detail in our article: Third party claims for professional negligence
Assessing the merits of claims for accountant negligence
It is not in every case where financial loss arises that a professional will be held responsible and before embarking on any claim for accountant negligence, a careful assessment will need to be undertaken of a number of important issues. These include:
- The scope of the legal duties owed by the accountant
- Any actions taken by the accountant to comply with those duties
- The nature and extent of the loss caused by any breaches of those duties
This can be a complicated process and the merits of each claim will often depend on the specific background events that give rise to it. For this reason, caution should always be exercised when relying on the reported outcome of one claim, to assess the merits of another.
How to make a claim for accountant negligence
Most professional negligence claims against accountants are commenced by correspondence and by following the procedures set out in the Pre-Action Protocol for Professional Negligence.
The aim of the Protocol is to make the process of resolving professional negligence claims more open and more efficient and, by doing so, to reduce the number of professional negligence claims that require judicial intervention. Happily, and since the introduction of the Protocol in July 2001, the vast majority of professional negligence claims are now resolved at the Protocol stage and without the need to institute and pursue costly and time-consuming court proceedings.
However, it is as well to appreciate that as helpful as the Protocol is, it provides only a generic framework for resolving professional negligence claims. It does not identify or assess what facts, issues or evidence is relevant and irrelevant in any particular case, nor does it contain legal advice.
Mitigating loss in claims for accountant negligence
As part of any claim for accountant negligence, it is important to consider what action, if any, might be taken to reduce the financial effect of any negligence. This is because all claimants who have suffered a loss are subject to a duty to take all reasonable steps to mitigate that loss and take no unreasonable steps which would exacerbate it. Where this duty is breached, the court is likely to prevent a claimant party from recovering compensation for that loss which it considers was unreasonably incurred.
The duty to mitigate can lead to much confusion and uncertainty, particularly at the outset of a claim, and further guidance on it is available in our article: The duty to mitigate in professional negligence claims
Time limits for professional negligence claims against accountants
There are a number of important reasons for acting promptly when a mistake has been made or discovered. One of these are the time limits that apply to all professional negligence claims.
These time limits can be found in the Limitation Act 1980. In short, they require legal proceedings to be commenced within:
- 6 years of the date upon which damage or financial loss occurs – section 2
- 6 years of the date upon which the mistake occurred – section 5
- 3 years of the earliest date upon which the claimant has both the knowledge required for bringing a claim and the right to bring a claim – section 14A
- 15 years of the date on which the mistake occurred, even if the time limit prescribed by section 14A has not expired – section 14B
Therefore, where there are grounds for pursuing a professional negligence claim against a solicitor or other lawyer, a claimant will generally have 6 years from the date of wrongdoing or loss, but may have 3 years from the date of discovery, if later, in which to bring any claim, subject to a long stop of 15 years.
However, while these time limits may appear straightforward in summary form, applying them in practice can be much more challenging. Unfortunately, there are a multitude of cases in which they have been misapplied, not only by lay clients acting as litigants in person but also by solicitors and other lawyers who have themselves fallen into error.
Although limitation is a complicated area of law with a large body of case law relating to it, further information about it can be found in our introductory guide: Time limits for professional negligence claims – FAQ
Funding claims for accountant negligence
Before embarking on any professional negligence claim it is imperative to consider how it will be funded. In comparison to other more routine forms of litigation, professional negligence claims can be more complicated, more time-consuming and more costly to resolve.
Fortunately, there are a number of ways to fund litigation. Each has its own advantages and disadvantages and can be more or less suitable, depending on individual circumstances. Further information about these different funding options can be found in our related guide: Fund a claim
Reporting an accountant for misconduct
Regrettably, it is not uncommon for issues of misconduct to arise in the context of professional negligence claims against accountants, as they do in claims against other professionals. While in some instances the misconduct in question can also amount to negligence, this will not be so in every case.
Misconduct is often defined by a breach of professional codes of practice that govern the professional, such as the ICAEW Code of Ethics. Where the breach is serious, reporting an accountant to the ICAEW, the ACCA, or such other regulator of the professional concerned, may be appropriate. If it appears that the misconduct might also constitute a criminal office, it may also be appropriate to report it to the police.
Where an accountant is reported for misconduct, disciplinary proceedings may follow. However, while disciplinary proceedings can result in penalties and sanctions being imposed upon the accountant, they do not often result in an award of compensation. Accordingly, they are rarely a substitute for, or an alternative to, pursuing professional negligence claims against accountants where financial loss or damage is sought to be recovered.
Fee disputes and service complaints
Fees can be a cause of dispute between accountants and their clients. If a mistake made by an incompetent accountant causes significant unnecessary, additional or abortive fees to be incurred, this may well justify a professional negligence claim. However, this is not always the most appropriate means by which to challenge an accountant’s fees.
Where disputes between accountants and clients arise from poor service, rather than as a result of a mistake that has caused a financial loss or liability, making a formal complaint to the firm may be more appropriate than pursing a professional negligence claim or reporting an accountant to its regulator. Examples of poor service may include:
- Failing to respond in a timely way to client correspondence
- Failing to hand over documents belonging to a client
- Failing to keep documents safe
- Failing to keep a client informed of progress
- Failing to provide appropriate information in relation to costs
- Failing to apply reasonable charges for work undertaken
- Failing to follow instructions within a reasonable period or at all
- Failing to investigate a complaint internally
If the firm is unwilling or unable to resolve the complaint satisfactorily, a complaint to the regulator may then be necessary. Perhaps surprisingly, the jurisdiction of the Financial Ombudsman Service does not generally extend to resolving service complaints against accountants.
Specialist legal advice
If you are contemplating making, or even currently pursuing, a professional negligence claim against a solicitor or lawyer and 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.