Professional negligence disputes

Professional negligence is a breach of the duty of care between professionals and their clients. The duty of care is a common law arrangement where the client expects a level of professionalism and standards commonly held by those in the profession.

What type of professional negligence disputes can you help me with?

Professionals and tradesmen owe a duty of care to their clients but sometimes professionals get it wrong and fail to meet the standards that a competent professional would be expected to meet. For example a surveyor might miss a significant defect in a property, an Accountant fails to advise correctly about your accounts or advises you to do or not take some financial action.  Solicitors sometime give bad advice or fail to advise or miss deadlines. Often, professional negligence claims occur when professionals give advice on matters beyond their expertise.

Tim Gir

tim@sanderswitherspoon.co.uk

01277 889251

01277 219125

Billericay, United Kingdom

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What is a professional duty of care?

Duty of care is a broad legal definition that protects individuals from others that engage in activities that could potentially harm others if proper precautions are not taken.  This ranges from operating a moving vehicle to performing surgery.  This also covers situations where individuals may suffer economic or emotional damage due to poor advice or conduct.  A manufacturer has a duty of care to the consumer as the consumer will assume that product, he or she is buying is safe and adheres to standards set by the government and common practices.

A lawyer may engage in legal malpractice if he not only deploys a questionable legal strategy but also makes critical errors that no “reasonable lawyer” would make.   If a mental health professional behaves unethically and violates common practice, then he too has engaged in malpractice.  Also, builders and architects maintain a duty of care with owners and tenants to ensure that the building they erect will adhere to government regulations and common practices for the construction of buildings.

What do I need to pursue a professional negligence claim

For a professional negligence claim against your professional to succeed, you must prove that they failed in their duty of care towards you. This can be achieved by establishing that your professional failed to meet the standards required of them. If the provider is, or claims to be, a specialist in the area they cover in question, they will instead be held to the standard of a reasonably competent specialist in that particular field.

If it can be proved that your provider breached their duty of care, it must then be shown that:

  • you suffered a loss; and
  • this loss was caused by your provider breaching their duty

Protocols for professional negligence

There are some protocols set for professional negligence. This Protocol sets out a code of good practice and contains the steps which parties should generally follow before commencing court proceedings in respect of a professional negligence claim.

As with all claims, a time limit applies. You must begin your claim within 6 years of the professional negligence in question. This, however, can be lengthened if you were unaware of the negligence at the time it occurred and only discovered it at a later date.

As soon as the claimant decides there is a reasonable chance that he will bring a claim against a professional, the claimant is encouraged to notify the professional in writing. If he feels there are grounds for a claim against the professional, the claimant should write a detailed Letter of Claim to the professional.

The Letter of Claim should be acknowledged in writing within 21 days of receipt

As soon as the professional has completed his investigations the professional should send to the claimant:

  1. A Letter of Response, or
  2. A Letter of Settlement; or
  3. Both.

Do all professional negligence claims need to go to court?

Court proceedings should be a last resort. Parties are encouraged to negotiate to settle a dispute or may use Alternative Dispute Resolution which would include:

  • Mediation – a third party facilitating a resolution;
  • Arbitration – a third party deciding the dispute;
  • Early neutral evaluation – a third party giving an informed opinion on the dispute; (d) adjudication – a process by which an independent adjudicator provides the parties with a decision that can resolve the dispute either permanently or on a temporary basis, pending subsequent court determination; and
  • Ombudsmen schemes.

Unless it is necessary the claimant should not start court proceedings until:

  • The Letter of Response denies the claim in its entirety and there is no Letter of Settlement
  • The end of the negotiation period

If proceedings are commenced, they should be served in accordance with the Civil Procedure Rules and then followed accordingly till closure. The compensation or damages to be paid will be based on the procedure in Court.