Professional Negligence FAQs
Looking for some answers? Check out our helpful FAQ’s section.
Professional Negligence FAQ’s
How does a conditional fee agreement (CFA) work?
A CFA is a risk-sharing arrangement whereby we agree to take a share of the risk in the claim. A full CFA or “no win, no fee” agreement is where, if you lose claim, you will not pay anything to us for our costs. If you win, you pay to us our fees on an hourly rate basis plus a success fee. The success fee is a percentage of our fees based on hourly rates. The level of the success fee will depend on all of the risk factors in the case including our assessment of the merits and the prospects of success on your claim. If you win, you will usually be entitled to recover costs from your opponent, but the success fee is not recoverable from your opponent however, as a firm, we agree to cap your success fee at 25% of your damages ensuring that you always retain the majority share of your compensation. You will be liable to pay to us any difference between the costs recovered from your opponent and the costs payable under the CFA including the success fee. If you lose, you will not pay anything to us for our costs, but will still be liable for any expenses and/or disbursements, but you may be able to take out after-the-event (ATE) legal expenses insurance against this risk.
How involved will I be in my claim?
We know that bringing a legal claim can be stressful and you can be as involved in your claim as you wish to be. Of course, we will always provide you with real and honest advice throughout your claim and will always act in accordance with your instructions.
We understand that some people like as little involvement as possible, and some like to be involved as much as possible. We will be guided by you as to how involved you would like to be in your claim whilst ensuring that you are always kept fully up to date.
How long do I have to bring a claim?
Professional negligence claims generally arise from breach of contract and/tort. A claimant has 6 years to bring this kind of claim. This is the primary limitation period. This period begins from the date that the cause of action accrues.
If the primary limitation period has expired but you had not realised your professional had been negligent, you have three years from the date that you first knew this or the date that you ought to have known. This is the secondary limitation period.
There is however, a 15 year longstop period. You cannot bring a claim after 15 years of the negligence or loss, regardless of whether you knew about the negligence.
How long will my claim take?
Every professional negligence claim is different and the timeframe can vary. However, the Professional Negligence Pre-Action Protocol applies to the majority of professional negligence claims. This protocol governs the conduct of the parties in the initial stages of the claim, for example, after we have sent a Letter of Claim to the Defendant, they have 21 days to acknowledge it and then 3 months after that to respond. Keeping this in mind, and the time it takes to investigate the claim, gather any expert evidence and take any other steps that may be required, the initial stages of the claim can take between 6 and 12 months. If the matter proceeds to trial, this can take in excess of 2 years although very few claims reach this stage.
How much will it cost me to bring a claim against my solicitors for the under settlement?
Most professional negligence matters can be run on a no win, no fee basis. Otherwise known as a Conditional Fee Agreement (CFA). This means that if we are not successful in recovering damages in your claim, we do not get paid for the work that we have done. If your claim is successful, the majority of our costs are recoverable from the defendant. There may be a deduction from your damages however, this will only be if you are successful and the circumstances and percentage will be discussed in full at the outset.
How will my claim be funded?
We would need to carry our a full risk assessment of your claim before we can advise you about funding. Below are some of the options:
“No Win, No Fee”
If we believe that your claim has reasonable prospects of success we can offer to work on a “No Win, No Fee” basis – also known as a Conditional Fee Agreement. If we are not successful in recovering damages on your claim, we do not get paid for the work that we have done.
Because of this risk, we are entitled to charge a Success Fee, or uplift, on our fees If we recover damages for you. The success fee will be deducted from your damages.
There will be other costs incurred as your claim progresses. Examples are, Court Fees, Expert fees and Barristers fees, these are known as disbursements.
We can usually obtain an insurance policy on your behalf to cover your liability for your opponent’s costs should your claim fail.
Before the Event Insurances
Some insurance policies include cover for Legal Expenses; the insurance provider will be liable to pay some or all of your costs in the claim. It is important that you check whether are hold a policy which offers this cover, the provider will only offer to cover your legal expenses if they have agreed to do so at the start of your claim.
Private Paying Clients
It is, of course, possible for you to pay our fees privately. If you were to instruct us on this basis, we would provide you with a breakdown of our charge out rates.
I feel that there was pressure from my solicitor to settle my claim as soon as possible
Rushed and early settlement could mean under-settlement. If you have been unnecessarily pressured into settling your claim quickly and feel that this has affected the value of your claim then we may be able to help, you may well be entitled to compensation from your previous solicitors.
I have settled my claim but I am aware of other claims being settled for more than I have received?
If you have settled your claim but are aware of other similar claims settling for more than you have received this may be a good indication that your claim has been negligently under settled. Not all claims are the same and there may be a reason for the difference in settlement, this is something that we are able to investigate on your behalf. Don’t worry if your claim has concluded, please get in touch we may be able to assist and recover your correct entitlement from your previous solicitors.
I was never advised about the likely value of the claim and what would be an appropriate settlement?
A valuation of your claim should be made as soon as possible, however this can only be accurate once all medical evidence has been received. Nonetheless, your solicitor should provide guidance from the outset of your matter on the likely settlement amount. This information would then assist you in making a reasonable and informed decision in relation to making or receiving any offers of settlement. If you have settled your claim and you were never provided with a potential settlement value, or you are in the process of settling your claim and do not feel that your solicitor has provided you with all the necessary information; please get in touch as we may be able to assist.
My claim has been settled on a split liability basis and I do not understand why?
If there is a suggestion that you could have or did contribute to your own injuries, your damages may have been reduced by way of what is referred to as Split liability / contributory negligence. Split liability can occur in any type of property damage or personal injury claim however, there are some circumstances where it simply is not appropriate, for examplein medical negligence cases where the patient was unconscious or under anaesthetic at the time of the negligent treatment. Your solicitors may have advised that it is best to accept split settlement in order to achieve a quick settlement. If your claim should not have been settled on this basis, it may be possible to show that the solicitors were negligent. This means that you may be able to pursue your original solicitors for the full amount of your claim. If your case was settled on a split liability basis and you are unhappy or unsure why this was so, please contact us to see if we can help.
My claim has settled but I’m not happy with the amount of compensation I received?
If your matter has settled for less than you had expected, we may be able to help. Not every low settlement is a negligent under settlement, but if there is a significant difference between what you received in damages and what you ought to have received then there may have been negligence on the part of your solicitor. In most cases it is not possible to return to the initial claim, but you could potentially recover the difference between the amount you received and the amount you could have received had your matter been correctly handled. This would be by way of professional negligence compensation from your original solicitors for any act of negligence on their part in regards to the settlement.
Should I make a complaint?
You can make a complaint against the relevant profession regardless of whether you have suffered a loss. Most complaints relate to issues of poor service such as delay, etc. You should send a formal letter of complaint to the professional which explains the problems you have encountered with them.
If you have issues with your solicitor and they have not been resolved through the initial complaint process, you are entitled to complain to the Legal Ombudsman, http://www.legalombudsman.org.uk/
If your problems relate to an accountant or financial advisor and your complaint remains unresolved, you can complain to the Financial Services Ombudsman. http://www.financial-ombudsman.org.uk/
Most professionals are regulated by a professional body. In the event that you do have a complaint which has not been resolved by the professional you should conduct some research into any regulatory body to whom you should address your complaint.
What can I claim back from the professional?
The purpose of bringing a professional negligence claim is to put you in the position you would have been had the professional not been negligent. As such, you can claim any loss you have suffered, provided that you would not have suffered it without the professional negligence.
What do I need to show to bring a professional negligence claim?
In order to bring a claim for professional negligence, you must satisfy the following elements:
- Did the professional owe you a duty of care? Where you are an individual relying upon the services of a professional, it is usually clear that you are owed a duty of care.
- Did the professional breach this duty of care?:The service you received must fall below the standard of what would be expected of a reasonably competent professional working in the same field.
- Did professional’s breach of duty cause you a loss? You must have suffered a loss and this must be a direct result of the professional’s negligence.
What should I do next?
If you think you have a professional negligence claim you should contact our Professional Negligence department. You can do this by calling any of our officesor by emailing email@example.com
Who can I bring a professional negligence claim against?
A professional negligence claim can be brought against any professional. We have experience with claims against the following types of professionals:
- Will writers
- Financial Advisors
- Insurance Brokers
- Insurance Companies
- Local Education Authorities
Will I have to travel to see you?
Again, this is completely up to you. We have client’s all over the Country and happily travel to them. Alternatively, we can meet you at any of our offices.
Will my claim go to court?
Again, every professional negligence claim is different. The Pre-Action Protocol encourages the early settlement of the claim and, in the vast majority of cases, claims are settled before the need for trial.
What is the Pre-Action Protocol for Professional Negligence?
The Pre-Action Protocol for Professional Negligence sets out the steps the court would normally expect parties to take before commencing proceedings. The court can impose sanctions (including on costs) for failing to comply with its provisions. It is designed to allow parties to exchange information and try to settle claims without the need for court proceedings. The claimant is expected to send a “Letter of Claim” setting out full details of the claim and providing any relevant documents. The defendant then has up to 3 months to consider, investigate and respond with a “Letter of Response” confirming whether the claim or any part if it is admitted, setting out its detailed response to the claim and providing any proposals for settlement. This may be followed by further correspondence or in some cases Alternative Dispute Resolution (ADR) such as mediation. If the claim is not settled, proceedings may then be issued.