Six clear steps to making a professional negligence claim
From time to time, we all rely on the advice and services of experts to help us. And if that service is negligent and results in harm or losses to you, you may be able to claim compensation.
In order to make a successful claim there are three areas which you must satisfy:
- Negligence: The service or advice you received was so bad that it fell below a reasonably acceptable standard for the particular trade, industry or profession.
- Causation: The advice or error caused you harm – such as financial losses, injury or other suffering. It is important to realise that to win a claim you must be able to prove not only the negligence but also that this was the cause of your harm (and you would not have suffered them anyway - even without the negligence)
- Valuation: This is proving the value of your harm or losses (also sometimes called “quantum”).
You might also be able to claim compensation if the service you received from the professional broke their agreement or contract with you to provide their service. Even if that contract (sometimes called “terms of business”) doesn’t cover what they did wrong, the law will often treat the contract as covering the issue (this is called “a breach of an implied term of the contract”). Often this contract point is also made at the same time as a professional negligence claim.
Read our guide to ‘Professional Negligence: How bad must the mistake be’ here
If it appears you will have a good claim for compensation, we’ll review several further issues with you, including:
Time limit: Are you within the legal time limit to be able to make the claim? The time limit on starting a claim is called the limitation deadline. It is a complex area of law and you will need to take specific advice on how they apply to your particular case. However, very generally:
- Usually the time limit is six years from the date of the professional advisor's negligence or the date that you suffered loss.
- In cases where the negligence causes a physical injury (such as a dentist or doctor’s medical negligence), the time limit is usually three years.
However there are many exceptions to these two rules. You may sometimes be able to apply to the court for an extension of time in limited circumstances where you were not aware of the negligence at the time (such as where the negligence was deliberately concealed from you). These rules are more complicated than can be covered here and we can give advice if they apply to you.
Your opponent’s ability to pay: It’s obviously only worth making a claim if your opponent (the professional considered to be at fault) has the means to pay you the compensation awarded by the court or agreed by negotiation.
Individual opponent: Are they bankrupt? Do they own their own house? Do they have home insurance that would cover them for the claim?
Business opponent: Are they still trading? Are they in receivership? Did they have business insurance (called ‘professional indemnity insurance’) to cover them for any claims brought for negligent advice?
However, with most professional negligence cases, the person who gave bad advice is likely to have insurance to cover them. When they do, our negotiations on your behalf (step 4) will be with their insurers. This is usually a good thing as the insurers will not take the claim personally and are more likely to take a realistic approach – wanting to reach an agreement that reflects the financial risk of you taking the case to court and winning.
Assessment of chances of winning: At this early stage there will be a lot of gaps in your knowledge of exactly what your opponent did or didn’t do. However we can help you assess your prospects of winning your claim. This assessment will look at four separate questions:
- What did your opponent do wrong?
- Does this amount to negligence (rather than an error a reasonable professional might also have made)?
- How did this cause you to make a financial loss (that you would not have otherwise have suffered)?
- How much is your loss (compared to if your opponent had not done something wrong)?
To find out if you can make a claim for compensation following the error or bad advice of a professional, then the first step is to chat to one of our friendly, expert lawyers about what has gone wrong and the financial losses you have suffered.
Our lawyers will be able to give you an initial view on whether what has happened sounds like the type of situation where it may be worthwhile investigating further bringing a claim for compensation. They will also be able to explain what is involved in bringing a claim. This costs nothing with our Free Initial Assessment telephone service.
Sometimes the situation will be too complicated to give a view in just a 10 minute Free Initial Assessment phone call. Also you may have some crucial paperwork that needs to be looked through or have questions about your specific situation. If this applies to you we can offer our specially priced £99 Ask the Legal Expert service where you can have a 45 minute face to face meeting with a specialist lawyer. This is a chance to ask questions and explore your potential claim. It can look at how the law is likely apply to your particular circumstances (including what you would need to be able to prove). It should leave you far more knowledgeable about your options.
If you decide to instruct us to support you in raising your professional negligence claim, then the service starts with us meeting you to start to put together all the information we’ll need to prove your claim.
We’ll work with you to piece together what happened and what went wrong. If you have any letters, emails, reports or other paperwork relating to the service you received then these will help. This will also enable us to check dates.
In most cases the best way forward is to have an open a dialogue with the opponent’s representatives, to see if it’s possible to negotiate with them to reach an ‘out of court’ settlement of the claim.
This usually starts with a claim notification letter covering:
- Details of you (the claimant) and any other potential claimant or opponent.
- A brief outline what you claim the opponent did wrong.
- The amount of losses and expenses you’ve suffered as a result of the negligence.
- A request for the opponent to notify their professional indemnity insurers.
- A request for a copy of all their records or files relating to the service they provided to you.
If the opponent refuses to release the records then we will consider a court application called ‘pre-action disclosure’.
Once received, a review of the opponent’s documents may confirm differences in dates and what they say happened. This will help us to piece together the events in a date order. It will also enable us to form a view of the strength of their case and any particular weaknesses.
Usually the next step is to instruct an independent expert. In most cases the expert will be a respected professional in the same industry, trade or profession as the opponent. We can guide you on this..
They will review all the evidence and paperwork available (including the opponent’s documents). Where there is physical damage the expert may also need to inspect this.
Whilst the expert is chosen and paid for by you, the claimant, that expert has a legal duty to given impartial independent advice.
The questions we’ll ask the expert to consider will vary with the type of professional negligence but will usually cover the following issues:
- What they think happened.
- Whether the opponent did make an error or give incorrect advice.
- Was the service you received so bad that it fell below a reasonably acceptable standard (no reasonable person with the same qualifications would have made the same mistake)?
- Was it wrong advice or error that caused your losses and expenses?
- Sometimes the expert will also be qualified to put a value on your losses.
Once the expert has provided the report to us, we’ll review your options with you. Even if the expert advises that the prospects of winning at court are relatively low, it may still be possible to negotiate an agreement with the opponent.
Depending on the nature of your claim, we may need to obtain further expert evidence.
At this stage, we’ll also work with you on preparing a detailed calculation of the losses and expenses you can claim. And if needed, request a separate expert report to provide an accurate value of the losses suffered. Read our guide to ‘Professional Negligence: what can I claim?’ here.
Next we’ll send a detailed ‘letter of claim’ to your opponent’s representatives.
This builds on the earlier notification and sets out your full case. It’s intended to be a letter that either side can refer to at court if a negotiated settlement is not possible – so it needs to be as accurate as possible and will usually include:
- Chronology of events: The sequence of what happened, with dates.
- Key documents: Copies of the main documents relied on to support your case.
- Negligence: Details of what we claim the opponent has done wrong or failed to do.
- Causation: An explanation of how the allegation of negligence has caused your losses.
- Financial losses: A list of the losses claimed (those you have already suffered and any future predicted losses), with details of how they have been calculated. We will supply supporting documents as proof.
- Other remedy: If you also suffered some other harm (such as an injury) or claim some form of non-financial remedy, we need to make this clear. For example building repairs, medical treatment or an extension of time to comply with a contract.
- Expert: Details of the expert that has been appointed by you (and an offer to exchange expert reports).
- Others: Details of any other claimant or defendant involved in the dispute. Also, if it has not already happened, a request the opponent notifies his or her insurer and provides them with this letter.
The opponent then has a period to formally investigate and perhaps obtain their own expert evidence. During this time they may ask for further information from you.
As soon as the opponent has completed their investigations, their representative should send either or both:
- A Letter of Response – making clear what is agreed and what is denied.
- A Letter of Settlement – making an offer to settle the case.
Even if there is no letter of settlement, it’s usually worth us attempting to negotiate a settlement.
Offer to settle claim
We will have gone through all of the information with you and advised how much we think a court would award you based on all the evidence. With your agreement we will put forward the pre-agreed figure you would accept as a fair compensation.
The solicitors representing your opponent may either agree or come back with a lower offer based on their own evidence. This is the process of settlement negotiations.
Sometimes other techniques may be helpful to see if an agreement is possible. These are sometimes referred to as alternative dispute resolution – such as mediation assisted by an independent mediator.
Any settlement offers the opponent makes will be reviewed with you, with the aim of negotiating an amount, based on what we believe a court would award based on the evidence. If you wish to accept the compensation negotiated then it is important you understand that if you accept it – it will be a full and final settlement. It will be binding on you and your opponent. You would not be able to claim more in the future (even if your medical condition deteriorates or your level of losses turns out to be more than predicted).
This out of court settlement is what happens in the majority of cases – so usually the next stage is compensation (see step 6).
Sometimes the negotiations can be helped with ‘alternative dispute resolution’. If the case goes to court, the judge may ask for proof that both sides at least considered this. If not considered the parties to the dispute can be punished in legal costs.
Alternative dispute resolution are different ways for both sides to the dispute trying to find an out of court settlement that they can both agree on and live with. It may not be everything they hoped to prove at court but can be achieved without the delays, expense and worry of a court hearing. Your lawuer can explain more about how these options can apply to your case:
- An evaluation of the dispute by an independent expert (for example, a lawyer experienced in the field of professional negligence or an individual experienced in the subject matter of the claim).
- Mediation – a form of facilitated negotiation assisted by an independent neutral party who tries to find a compromise outcome that both sides could live with.
- If no agreement with your opponent is possible then you may have no option to pursue the matter through the courts.
By this stage your opponent may not have a great deal of involvement in the dispute. Instead their insurers (who will be responsible for paying any compensation) make their decisions, with legal advice from solicitors instructed by your opponent’s insurance company. Occasionally they won’t accept responsibility or will only offer a level of compensation which we think is too low.
We will talk you through any offer made. In particular we will advise you on how it compares to what we think you would be awarded if you decided to fight on, using the court process.
We will discuss the evidence, along with the strengths and weaknesses of your case and the opponent’s. We will give you our view about what would happen at court. Our role is to provide clear advice in plain English – not legal jargon. That way you are able to make an informed decision on what you want to do next.
Then if you agree with us that it’s too low, and you decide to fight on, we can then prepare for issue of court proceedings. This means starting the court process, by notifying the court of the dispute.
We’ll complete the official claim form and file the papers at the court. This does require a court fee (unless you are on a very low income or certain state benefits).
Sometimes, just the issue of court proceedings can be enough to secure an increased offer from your opponent.
The court will then send court papers to your opponent (now officially known as the defendant) and there are three routes that they can follow:
- They ignore the court’s paperwork – then you can apply for the court for an order that the Defendant pays you a sum of compensation to be assessed. This is called a ‘Default Judgment’.
- They respond with a Defence and admit they were negligent. They dispute your valuation of the harm they caused you.
- They dispute respond with a Defence and admit both that they were negligent and your valuation of the harm you suffered.
- They admit and accept both that they were negligent and your valuation of the harm you suffered – agreeing to pay you.
With 1, 2 and 3 a judge to review the paperwork and then set a timetable of steps which both sides must follow up until trial or assessment of compensation. This timetable usually covers:
- Exchange of evidence (called disclosure)
- Exchange of witness statements (including one for you) covering the evidence each side relies upon
- Exchange of expert evidence and often a joint statement from the experts instructed by each side.
This timetable is designed to encourage the lawyers for each side to keep talking – to see if a negotiated settlement is possible. The parties will normally make formal offers of what they would pay/accept to settle the case without the delay, expense, uncertainty and stress of going to trial. This means the majority of cases do not reach a final trial as a negotiated settlement is often agreed.
In the few cases that get as far as a trial this will be heard in a court in front of a judge. The process for this is:
- Both sides get an opportunity for their lawyers to present their case to the judge.
- They will go through the evidence in support (such as photos and documents).
- They will present written statements from the witnesses (including the claimant and defendant) giving evidence (with the judge and the other side being given the chance to ask them questions, known as cross-examination)
After considering the evidence, the judge will:
- Decide on the facts, if the advice or mistake made by your opponent was negligent.
- If the judge decides your opponent was negligent and if negligent, they will assess the level of harm (injury, suffering and financial losses) caused by that negligence.
- Then the judge will decide on the remedy (such as repairs or compensation) which is fair and reasonable to award, together with interest.
The final step at the end of a successful claim will be that your opponent will make you a compensation payment. This will be either the compensation:
- Agreed by negotiation (with or without the court’s help) with your opponent’s representatives.
- Awarded by the judge at court.
Where there is an agreement between you and your opponent this is legally binding on you both.
You will have to pay your contribution to legal costs out of your compensation. Usually when you win your claim the bulk of the cost of our work and the payments to others (court fees, expert’s charges, etc) will be payable by your opponent (usually by their insurers) on top of your compensation. Where you already had or took out legal expense insurance this can sometimes mean you have no deductions at all from your compensation (dependent on the terms of the insurance policy).