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Professional negligence occurs when a professional fails to provide services to the standard reasonably expected in their field, resulting in loss or harm to a client. Professionals owe a duty of care and breaching that duty may give rise to a claim for compensation.
To establish a claim for professional negligence, a claimant generally needs to prove the following:
Duty of Care: The professional owed the client a legal duty to act with reasonable skill, care, and competence. It must also be shown that the client relied on and acted on that advice. If a client ignores or overrules professional advice, liability may be reduced or avoided entirely.
Breach of Duty: The professional failed to meet the standard expected in their profession.
Causation: The breach directly caused harm or loss to the client.
Damages / Actual Loss: The client suffered measurable financial or other loss as a direct result of the breach.
These elements form the foundation of any professional negligence claim and are critical to demonstrating that the professional’s conduct falls below the expected standard.
Different professions have distinct standards of care. What constitutes negligence in one profession may not in another. For example, a solicitor missing a court deadline may be relatively straightforward to assess, whereas a surveyor failing to identify a structural defect may involve complex technical and expert evidence.
If a client ignores or overrules professional advice, liability may be reduced or avoided entirely.[MY1]
Differences in professional opinion, when reasonable care was exercised, are not negligence.
Unfavourable outcomes despite competent work generally do not constitute negligence.
Many professional relationships are governed by written contracts specifying the scope of work, obligations, and expected standards. Breach of these contractual duties can support a claim in addition to a duty of care under common law.
In some professions, contracts may attempt to limit or exclude liability. For legal services, these are typically unenforceable. In other sectors (e.g., consulting, engineering), such exclusions may be enforceable if reasonable and clearly communicated.
Professional negligence claims are complex and require careful consideration, specifically:
Proving Causation: it must be demonstrated that the professional’s breach directly caused the harm.
Demonstrating Actual Loss: Compensation is only available for real and quantifiable losses.
Limitation Periods: Claims are generally subject to strict statutory time limits.
Costs: Claims without sufficient evidence of breach or loss can result in significant adverse legal costs.
Case Complexity: Some claims, such as a solicitor missing a filing deadline, may be straightforward; others, like structural survey errors, require expert reports and technical assessment.
Most professionals carry insurance to cover claims arising from negligence. While this provides reassurance for potential claimants, it can complicate claims because :
Insurers have the expertise and financial resources to operate tactically and sometimes attitionally, meaning they may dispute liability for strategic reasons, even where a claim is string on legal grounds..
Coverage may be partial or conditional, affecting recovery strategies.
Early engagement with insurers is essential as delay may allow the insurance company to avoid covering the claim.
Most claims in England and Wales are subject to the Professional Negligence Pre-Action Protocol, a specific set of sub-rules which are part of the Civil Procedure Rules for civil claims in England & Wales. The protocol is designed to:
Encourage early exchange of information and relevant documents.
Promote settlement discussions before court proceedings.
Provide a structured framework for assessing claims and potential remedies.
How the Protocol Works
Letter of Claim: The claimant sets out the alleged negligence, losses suffered, and supporting evidence.
Acknowledgment and Response: The professional or insurer responds, stating whether liability is admitted, denied, or requires further investigation.
Pre-Action Disclosure: Both parties are expected to exchange relevant documents, contracts, correspondence, and reports to support or defend the claim.
Settlement Discussions: Parties should attempt to resolve the dispute without formal litigation, sometimes involving mediation or alternative dispute resolution.
Expert Evidence: Almost all cases require independent professional reports to demonstrate a breach of standards and quantify losses.
Following the protocol helps manage the claim efficiently, with the aim to reduce costs and increase the likelihood of early resolution. It does however mean that a claimant will have to expend not inconsiderable funds upfront before starting a claim.
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