Professional Negligence Claims

Professional Negligence

‘Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill. He does not undertake, if he is an attorney, that at all events you shall win your case, nor does a surgeon undertake that he will perform a cure; nor does he undertake to use the highest possible degree of skill.

So said Tindal CJ in Lanphier v Phipos back in 1838, and the same is true today. A professional is required to possess a minimum degree of competence and to exercise reasonable care in the discharge of his or her professional calling.

When a lawyer is instructed by a client, the retainer that arises contains both express and implied contractual obligations. Express terms should be set out in writing and agreed before the work is undertaken. Usually they will be taken to incorporate compliance with the rules of the professionals governing body. This would include, but not necessarily be limited, to performing the professional work in such fashion as might be expected from a reasonably competent professional of that calling.

The contract you enter into will also contain implied obligations. Whilst these include an obligation to exercise reasonable skill and care, it is much more complex than that. A contract for the services of a professional gives rise to a multitude of rights and duties of which to exercise reasonable care and skill is but one. The precise extent of implied obligations and duties depends upon and must be related to the terms and limits of the retainer in any particular case which are questions of fact to be decided in each case.
For example, if you instruct a solicitor to act for you in the purchase of a house it is to be expected that you will obtain good title to the property free of any encumbrances of which you were not made aware. If you instruct an accountant to deal with your tax affairs you are entitled to expect not to have to pay unnecessary tax.

The extent of the duty is therefore to do that which a reasonably competent practitioner would do having regard to the standards normally adopted in his profession judged by the standards prevailing at the time the advice as given. Not every mistake constitutes negligence or breach of duty. It is necessary to establish that no reasonably competent professional would have acted in this way. What is a reasonable degree of care and skill will be is usually what the reasonable expectation of the client might expect.
If you are given advice by a professional, there will be a duty to take reasonable care that the advice given does not cause any foreseeable loss.

‘Only if it is foreseeable that if the advice is negligent the recipient is likely to suffer damage, that there is a sufficiently proximate relationship between the parties and that it is just and reasonable to impose the liability’. Per Lord Griffiths in Smith v Eric S Bush (1990).

It is essential therefore to consider whether there exists a causal connection between the breach of duty alleged and the loss incurred. If not, and no loss has occurred damages will not and cannot be awarded. If the loss would have incurred in any event or if it was too remote from the breach alleged or if the chain of causation has been broken by an act or omission of the Claimant or a third party, there can be no basis for a claim.
Thus, in Sykes v Midland Bank Executor and Trustee Co Ltd (1971), it was held that because the Claimants would have entered into an under-lease even if properly advised by their solicitors, only nominal damages would be awarded.

Allegations of professional negligence are often made as a result of a claim by the professional to recover outstanding fees. Allegations of negligence should be raised before a dispute arises and litigation has commenced. The parties should always comply with the pre-action protocol (see below) to resolve disputes before either party commences litigation. If litigation has already commenced, it will be a matter for the Court whether sanctions should be imposed against either party for not complying with the protocol. In any event, the parties should apply to the Court for a stay to allow the protocol to be followed.