To succeed in a professional negligence claim in England and Wales, the following elements must be satisfied:
Duty of Care: a professional owed a legal duty in contract or tort to act with the reasonable care and skill of a professional in that field.
Breach of duty: the professional breached their duty by acting incompetently or failing to exercise reasonable care.
Causation: the breach directly caused a loss. It must be demonstrated that ‘but for’ the professional’s negligence a loss would not have been suffered.
Loss: a measurable loss has been suffered as a result of the breach.
This article explains the key requirements for bringing a professional negligence claim, common factors that may affect a claim’s success, and the general pre-action process involved.
Establishing duty of care and gathering evidence
Generally, professionals are taken to have assumed responsibility towards their clients and may owe a duty of care in tort and contract. Where there is an action in both, the person claiming can bring their action in contract or tort.
The burden of proof lies with the claimant, the person claiming the losses from the professional. The professional would be referred to as the defendant. Therefore, evidence will need to be provided to prove negligence.
This may be evidenced in a file from the transaction with the defendant, or recorded in letters, emails or written documents. Evidence of the loss will also need to be provided; this may be in the form of receipts or valuations.
Key considerations when assessing a professional negligence claim:
The claimant must prove on the balance of probabilities that the defendant was negligent. The following factors need to be considered when assessing a claim:
- Consider who the claim is being made against and whether they will have the ability to compensate for the losses. It may be that the professional has insurance that would cover all or part of the claim.
- Generally, claims for professional negligence must be brought 6 years from the date of the breach. This is known as the limitation period. In certain circumstances the period of limitation may begin from the date of knowledge, however, the date of knowledge period only begins once the 6-year limitation date has passed. If your claim is outside of limitation, you cannot bring a claim as the case will be statute barred. There may not be a claim if the defendant’s advice has been ignored or overruled by the claimant.
- Compensation is only available for real and quantifiable losses. For example, compensation cannot be claimed for pure emotional distress unless it is directly linked to the financial harm.
Why early legal advice is important
Given the technical nature of professional negligence claims, early legal advice is often crucial. An experienced professional negligence solicitor can assess whether the legal tests for duty, breach, causation and loss are met, help gather and preserve evidence, and advise on prospects of success before costs are incurred.
What is the professional negligence claim process?
If a claim is assessed to have the required prospects of success, the Professional Negligence Pre-Action Protocol must then be followed. This process encourages early settlement of a claim outside of court to reduce time and costs. The following steps must be complied with:
Preliminary Notice: the defendant must be notified of the claim and provided with an estimated financial value. The defendant will have 21 days to acknowledge this notice.
Letter of Claim: once all evidence has been assessed, the claimant will send a Letter of Claim setting out a chronology of the case and the legal arguments relied on. Duty of Care, Breach, Causation and Loss will need to be established.
Letter of Response: the defendant has 3 months to respond to the Letter of Claim. In that response, the defendant will say whether liability is admitted, disputed in full, or disputed in part.
The parties may then enter into settlement negotiations. If the matter is not resolved after this process, the claim may proceed to court. The Pre-Action Protocol must be followed before court proceedings can be issued.
Negligent professional advice can cause significant financial and emotional distress to those affected. If you believe you may have been affected by negligent professional advice, seeking early legal advice can help clarify your position and potential options. At Bridge McFarland our expert solicitors can assess the merits of your case and provide clear, practical guidance on the next steps. Call our professional negligence team on 0800 987 8800 or email enquiries@bmcf.co.uk.
