‘A claim for negligence against a professional, such as an accountant or an architect, can be more complex than a standard negligence case because there are several elements to that claim that must be proved, some of which are specific to each profession,’ says Jonathan Lewis, dispute resolution solicitor with QualitySolicitors Parkinson Wright. ‘Ensuring you put forward the right evidence is essential if you are to be able to prove these elements when making a claim.’
Jonathan looks at the main requirements for all claims against professionals, and highlights the type of evidence that might be needed for a claim in the field of architecture or accountancy.
What are the main requirements for bringing a successful professional negligence claim?
A successful claim against a professional for negligence must meet a number of requirements in order to be successful, and what is needed by way of evidence will depend on what type of profession is involved.
However, there is some overarching criteria that relates to all professional negligence cases, which is needed in order to prove your claim.
Generally, negligence can be claimed when an entity causes loss to another as a result of lack of care, or reckless behaviour, which leads to loss or damage.
A claim for negligence against a professional person or entity is similar, however a professional is held to higher standards in terms of the level of skill and care that they are expected to exercise when carrying out their job.
To prove negligence against a professional, as a minimum, you need to be able to show the following three elements:
You were owed a duty of care by that professional.
In many cases this can be shown by the fact that you were a client of that professional, and that you paid them for professional services via a retainer. The retainer will usually be set out in a signed contract, or if not a signed contract, then the professional will often set out in writing the agreed scope of work and fees to be paid in advance. It may also set out what professional duties will be performed under the agreement. This makes it easier to show that those duties have been breached.
If the duties are not specified in writing, you may need to provide examples to the court of what would be usual for a professional carrying out this type of work. This is likely to require the evidence of an expert who undertakes a similar role to prove if the duties were not met.
However, a contract is not essential to establishing a claim as it is possible to pursue a claim of negligence against a professional under the common law tort of negligence. This might occur if you do not have a written retainer, or if you were not a client of that professional, but you were significantly affected by their actions. For example, if you were a tenant in a house and you were adversely affected by the negligent actions of an architect employed by the owner of that house. To do this you would need to show that they failed to exercise reasonable skill and care in carrying out their job and that you suffered loss as a direct result.
This may be more difficult to evidence. You will need to establish, through expert evidence, not only what level of skill and care would reasonably be expected, and that this was breached through lack of care or negligence, but also that your damage was foreseeable.
How was that duty of care breached?
A court will apply a higher standard of care to a professional than that applied to the average person, because a professional is considered to have a special skill or competence by reason of membership of a profession. Therefore, the test as to whether there has been negligence and a breach of duty of care is whether a similarly qualified professional would have acted in the same way. If the professional’s conduct or mistake was one which no reasonable member of that profession would have made in the same circumstances, then a breach of their duty may be found.
As this assessment will rely on having detailed knowledge of how that professional would usually carry out their tasks, it is likely that you will need to introduce an expert in the same field in order to establish this.
How did the breach of the duty of care cause a direct loss to you?
Even if a professional acted negligently, if their negligence did not actually cause your loss, your claim will not succeed. This is often referred to as the ‘but for’ test. i.e. but for the defendant's negligence, the loss would not have occurred. If the damage would have occurred anyway regardless of the actions of the professional, then the breach cannot be said to have caused your loss.
If an accountant forgets to file your tax returns and you are fined as a result, this would clearly be reasonably foreseeable. If, however, this led to a breakdown in your business relationship with your fellow directors, then any loss stemming from that is likely to be too remote.
What evidence might be needed for a successful claim against an architect?
Most architects will operate under a contractual retainer with their client which will set out the terms of their engagement. This is vital, as is a copy of their file, however you are not necessarily entitled to internal communications within the firm which will remain within their ownership. If you have not paid your invoice they may hold your file under a lien, but it still may be possible for a court to order disclosure if necessary.
When an architect’s work falls below standard, any loss that was caused will need to be proven. Common examples of a breach of standards by an architect might include failing to advise on necessary planning permissions, or providing inaccurate drawings or plans.
The loss caused will depend on the negligence, but is likely to be financial loss, or property damage, or unnecessary delays with knock-on effects.
Architects are highly regulated by the Royal Institute of British Architects (RIBA) and are mandated to follow the Code of Professional Conduct, and so proof of a breach of this code is a good way to show negligence.
Proving a breach of standards will often involve the instruction of an independent expert within the same field to review and report upon the actions of the professional and show standards were not met which caused a loss to be suffered. Evidence of the loss will be required as well as evidence of the breach.
What evidence might be needed for a successful claim against an accountant?
A claim against an accountant will need to meet the same criteria as all professionals. That there was a duty owed, that duty was breached, and a loss was suffered by you as a result. You will therefore need to prove you had a professional retainer with an accountant, likely to be in the form of a letter or contract with them. As with any professional, you can ask to see your client file so that you can show the terms of your engagement with them through correspondence if necessary. This may also help with showing a breach of their duties to you.
There are many ways in which an accountant might breach their duties to you. For example, negligence in preparing accounts for your business, or perhaps advising on tax avoidance which is actually tax evasion. Or providing insufficient advice so that you are unaware of your full tax liabilities, resulting in large unpaid arrears and penalties.
All accountants are governed by a regulator. There are several different but similar regulatory bodies that set certain overall standards for accountants which they must meet. Therefore, knowing what these are, and providing evidence that the accountant that you have engaged has fallen below a recognised standard can be good evidence that a duty of care has been breached.
Evidence of direct loss to you will be needed. For example, a fine by HMRC or Companies House for failure to file correct returns would be a fairly straightforward way of proving a loss occurred.
More complex loss may involve an expert, such as an accountant in the same field, or a forensic accountant, to quantify any resulting loss.
How we can help
Ineffective or negligent professional advice or behaviour can cause a company significant damage and may have serious repercussions, not just financially but also reputationally.
If your business has suffered as a result of professional negligence, it is important that you consult an expert to ensure that you capture all of the evidence that you need to ensure that any claim you may have has the best chance of success from the outset.
Our solicitors have many years of experience in this area. For further information and assistance, please contact Jonathan Lewis or a member of the dispute resolution team on 01905 721600 or via email worcester@parkinsonwright.co.uk
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.