A professional person has a legal obligation to exercise ‘reasonable skill and care’ when carrying out work for his or her client and a claim in professional negligence can be brought if this duty is breached. If the standard of the work carried out is not such as a ‘reasonable professional working in this field’ would provide, then they are liable for any loss which was foreseeable and can be directly contributed to the lack of care. Therefore you are entitled to receive at least an adequate service if you employ a professionally qualified person to work for you. If they do not provide such service as can be expected of a professional and as a result suffer loss, you may have a claim for professional negligence and entitlement to compensation by way of an award of damages from the court.
Allegations of negligence chill the blood of most professionals. Unlike many claims arising from a commercial relationship, the professional is likely to feel that his expertise and reputation are being challenged. Perhaps irrationally but consistent with human nature, the professional may therefore respond at least initially as though he has been personally insulted.
Negligence is likely to be denied as to admit will be a breach of the professional’s insurance. Solicitors, accountants and the like must carry professional indemnity insurance which means that a valid claim will be paid out under the insurance policy. There is likely to be an obligation to inform the insurer as soon as allegations are made and pass the claim to them to deal.
The fact of being insured makes professionals fair game for some Claimants and this is known. It should not be though that the professional or his insurer will cave in easily. However, most professional indemnity insurance is written with a substantial excess which may well be lost to the professional in terms of his insurers’ premium, win or lose. Claims whether or not paid out by the insurers will adversely affect the professional’s renewal premium. There is therefore pressure on the professional to settle, at least within the excess.
It is a fundamental principle that a party in a civil claim must prove their case on ‘a balance of probabilities’, i.e. more than 50% probable. To do so in a case which is not clear-cut, the Claimant will require evidence from an appropriately qualified expert. There is a catch here. You will need that evidence before issuing to ensure that he has at least an arguable case. The professional or his insurers will probably obtain their own expert evidence. If matters rested there, the two experts would battle it out in Court if they could not agree – all well and good.
However, the Court Rules and Judges prefer that there be a single joint expert – who obviously will not be one of the parties’ experts – and this introduces the twin evils firstly of uncertainty of outcome and secondly of further expense, at a stage when costs may well already be considerable. On the other hand, the findings of a single joint expert are very likely to resolve the dispute at least as far as the issues on which the expert is appointed are concerned.
If you believe that you have been let down by a professional and that you may have a professional negligence claim, there are a number of things, all of which have to be proved.
Showing the existence of a duty of care by a professional to his client will not usually present any problem. Most professionals, such as solicitors, are obliged to confirm in writing the extent and nature of their duty, by way of what is often known as a ‘client care letter’. However, there may be instances where loss has arisen as a result of the negligence of a professional not directly instructed by you. Whether there is a duty of care, will then have to be investigated. Once a duty of care has been established, it will then be necessary to consider the extent of that duty.
The standard test for whether a duty of care has been satisfied is whether the service provided fell below that of a reasonably competent professional in the same profession carrying out work of this nature. There will usually be an implied requirement that the work is carried out with due skill and diligence and within a reasonable period.
Once it has been shown that there was a duty of care and that it has been breached, you will need to show that the resulting loss you have suffered was foreseeable and a direct consequence of the alleged negligence. This may give rise to arguments of contributory negligence from the professional who could well place some of the blame on you. Remember also that disappointment with the result (such as in unsuccessful litigation) is unlikely to be sufficient to prove professional negligence.
It is important to remember and bear in mind the difference between professional negligence and simple poor service. Thus, if you instruct a solicitor and he is rude to you and does not return your telephone calls, this is unlikely to be professional negligence. It is simply poor service unless you can show that, for example, you lost your case because he did not return your calls. Poor service may well be relevant to what you have to pay, but it does not constitute professional negligence by itself.
You are therefore likely to be able to bring a claim for the foreseeable and provable loss you have suffered as a result of a professional negligence, once you have established a duty of care and that the professional did not act as a reasonably competent member of his profession should do. In most cases, unfortunately, professional pride will result in a denial of liability and an initial refusal to refer a claim to the professional’s indemnity insurers. Unhappily, and having complained and not received a satisfactory response, you will have little alternative other than to consider court proceedings. You may not, however, as yet run off to court. There is a protocol which needs to be followed if you are not to run the risk of being held liable for any wasted costs.
The professional negligence pre-action protocol
The purpose of the protocol is to establish a framework for the early exchange of information to facilitate investigation which could lead to negotiation and settlement outside of court proceedings. There are a number of different protocols applicable to different professions, but they all require as an initial step the writing of a formal ‘letter of claim’.
The letter of claim must contain basic information concerning the grievance, an indication of how much is being claimed and the request that the professional indemnity insurers are informed. It should be an open letter (that is not written ‘without prejudice’). A chronology of events should be included, together with copies of relevant documents.
An acknowledgment of the letter of claim should be received within 21 days. The professional (or more usually his insurers) will then have three months to investigate and hopefully put forward proposals for settlement. Within this time, a response letter must be sent with a detailed reply to the allegations and either an admission or denial of liability. If satisfactory settlement proposals are not received, you may then proceed to issue court proceedings.
The formal letter of claim should include the following:
- the identity of any other parties involved in the dispute or a related dispute;
- a clear chronological summary (including key dates) of the facts on which the claim is based. Key documents should be identified, copied and enclosed;
- the allegations against the professional. What has he done wrong? What has he failed to do?
- an explanation of how the alleged error has caused the loss claimed;
- an estimate of the financial loss suffered by the Claimant and how it is calculated. Supporting documents should be identified, copied and enclosed. If details of the financial loss cannot be supplied, the Claimant should explain why and should state when he will be in a position to provide the details;
- if you are seeking some form of non-financial redress, this should be made clear;
- confirmation whether or not an expert has been appointed. If so, providing the identity and discipline of the expert, together with the date upon which the expert was appointed;
- a request that a copy of the letter of claim be forwarded immediately to the professional’s insurers, if any.
The letter of claim is not intended to have the same formal status as a Statement (or Particulars) of Claim. If, however, the letter of claim differs materially from the statement of claim in subsequent proceedings, the Court may decide, in its discretion, to impose sanctions.
If the Claimant has sent other letters of claim (or equivalent) to any other party in relation to this dispute or related dispute, those letters should be copied to the professional. Always beware of limitation periods (usually 6 years) and that the sending of letter of claim does not stop the limitation period from running.