We all rely heavily on professionals whether in a personal or business capacity. The Solicitor who helps you to purchase your house, the Surveyor who prepares the report assessing in detail the structure of your intended home, and the Accountant who gives you advice upon your company's taxation position and how best to minimise your tax liability, all owe a legal duty of care to carry out their professional services with reasonable care and skill.

The growth of professional negligence claims has risen massively in recent years and in particular with law suits against Solicitors where there has been a reported increase of 163% in the last year. The recession and the falling property market have been cited as reasons for this but there appears a general readiness to hold professionals accountable for all manner of infractions.

A claim in professional negligence requires at the outset a careful evaluation of three things:

• Breach of the Duty of Care;
• Causation and reliance;
• Loss.

What may appear obviously negligent may not actually be a sufficiently serious failure to establish negligence in law. You also have to show that your losses arose from the negligent act or failure. This is not always an easy process and can require expert financial and accounting evidence.

Breach of Duty

You must firstly show that the professional owed you a duty to act with reasonable care and skill. An obvious starting point is the contract by which the professional agreed to undertake work and provide advice on your behalf. This will define the scope of the work and the extent of the professional's duty. Sometimes the professional will argue that only certain advice and works came within their responsibility.

For example, where a Surveyor has provided a basic mortgage valuation report and has failed to report upon and notice the absence of wall ties, the Surveyor could argue that, given the limited nature of his survey instructions, he was not obliged to ascertain such defects. In contrast, a Surveyor undertaking a full structural survey would be expected to comment upon such a significant issue.

Has the duty of care been breached? There is a considerable amount of case law where the Courts have declared a breach of professional duty to have taken place and, although some general principles have emerged to enable us to predict when a finding of negligence is likely to succeed, each case will be looked at on its own individual merits.

Sometimes the Court will have regard to regulations and professional codes of conduct, e.g. the RICS Code. In some instances, considerable technical input will be required to assess whether the professional has failed to discharge his duty. In a construction professional negligence case, the expert advice may be required from a fellow professional, to evaluate the standards required of the professional and whether they have been breached.

Causation or Reliance

You must always show that the professional's failings were the effective "cause" of the damage you have sustained. If you would have suffered a loss anyway, then the essential element of causation would be missing.

If, for example, you would still have entered into a business lease even if your Solicitor had properly told you that the repair covenants were extremely onerous and expensive, then there would be no causal link between the failure to advise and your loss. The classic test employed by the Courts is that of assessing what would have happened "but for" the negligent act or omission.

Losses

The aim of compensation in a professional negligence action is to put you back into the position you would have been in had the professional carried out their services with the requisite reasonable care and skill. These losses must also be foreseeable and not too "remote". Whilst the consequences of a professional's wrong doing can be potentially endless, the law limits this liability to the direct and foreseeable consequences of a negligent act. Often common sense is brought to bear in deciding this difficult issue.

You must also "mitigate your loss", which means that you must take reasonable steps to keep your losses to a minimum and must not act in an unreasonable way that actually increases your losses. For an example of how this duty operates, in one particular case, the Claimant complained that her Solicitors in the course of matrimonial proceedings had provided her with poor advice and representation. In consequence, she stated that she had not achieved the divorce settlement from her husband that she deserved. Her financial circumstances then deteriorated. It was open to her at all times to apply to vary the Court order. When she finally did so some 6 years after the original settlement, she obtained a large increase in the payment due from her husband. Her failure to apply to vary the order was seen as a relatively simple way of avoiding loss, and she was therefore held to have failed to mitigate her loss.

What is the procedure for bringing a Claim?

In order to accurately assess your position we would need full details of any potential claim, with supporting documentation and paperwork. In say, the case of a negligence claim against an Accountant we would require the accountant's original file of papers, including all attendance notes, correspondence and working papers, including draft and final accounts.

The Court requires us to send a specially prescribed Letter of Claim, under the Professional Negligence (Pre-Action) Protocol, before any Court proceedings can be issued. Under the Protocol, the professional is obliged to inform their insurers of a claim and to respond usually within a three month time period, either admitting or denying liability.

What are the time limits for bringing a Claim?

Civil claims, including professional negligence actions, are subject to strict time limits (known as "limitation") within which those claims must be brought, or they cannot proceed.

In simple terms, a professional negligence action must be brought within 6 years of the negligence occurring and loss being caused.

If, however, you are framing your claim in terms of breach of contract, then you must bring your claim within 6 years of the date on which the contract was breached.

Much case law has been generated on the subject of limitation and it is not always simple to calculate if a claim has been brought in time.

Are there any other options apart from bringing a Court action?

It is open for you to seek compensation from the ombudsman relevant to the particular profession. In the case of Solicitors, this is the Solicitors' Regulatory Authority. They can adjudicate upon cases of "inadequate professional services" though in practice the awards can be very limited in amount and scope.

It is perhaps no surprise that insurers and their legal advisors will fight hard to defend allegations against a professional which, after all, involve not simply questions of financial exposure but serious issues of misconduct. Your chances of success and optimum recovery are maximised by involving practitioners at QualitySolicitors Oliver & Co from the outset with many years of experience in this field.

For further advice and information use the contact form or call 01244 354667 and ask for John Loney.