MYTHBUSTER’S GUIDE TO Professional negligence claims
Have you been let down by a professional such as a solicitor, accountant, financial advisor, IT engineer, architect, or builder? If so, you may be entitled to claim compensation for losses caused by that bad advice or workmanship.
I have considerable experience in acting for both claimants and defendants in professional negligence claims, and can dispel a few of the more common myths relating to these claims:
Myth 1: You just have to show that the professional made a mistake
Mistakes can happen, but that is not enough in itself to prove negligence. You must be able to satisfy the court that the professional in question owed you a duty of care, that they breached that duty, and that this caused you financial loss which was reasonably foreseeable.
To show that they breached any duty owed, you must show that the professional’s services objectively fell below the standards of a reasonably competent professional.
In addition, depending on the facts of the case, it may also be possible to bring a claim for breach of contract, or breach of fiduciary or statutory duty.
Myth 2: Bringing a claim will be very expensive
To give a typical lawyer’s answer – it depends! Yes, pursuing complex litigation can be a lengthy and costly process. However, like many solicitors we are sometimes willing to act on a conditional fee agreement (commonly called a ‘no win no fee’ agreement). This means that we take all or most of the financial risk as we would not be paid for any of our time if you lost, and in return would receive a success fee if you won.
Myth 3: In a ‘no win no fee’ case, you might end up taking all my compensation even if I won
No. If your claim were successful then ordinarily your opponent would pay most of your costs. However, they would not pay any of the success fee, so this and the remainder of your costs would be paid out of your compensation. But this can be capped in advance, for example at no more than 25% – 50% of your compensation, to ensure that if you win you will be certain of walking away with a large proportion of your compensation.
Myth 4: Bringing a claim will take years
For large or complex claims which are defended all the way to trial, yes this may sometimes be the case. However, the civil justice system is geared towards encouraging parties to try and resolve their disputes in a cost-proportionate and timely manner wherever possible. This may include engaging in ‘Alternative Dispute Resolution’ such as mediation, where the parties try to negotiate a settlement with the help of a professional mediator. (Please see our previous edition of Mythbusters by Mark Fitch from Hatch Brenner in the April edition of EDP Norfolk magazine which discusses this.)
Myth 5: If the professional goes bust I might not get anything
The reason you pay a premium for advice or work from a professional is not just their skill and experience, but also that they are usually backed by substantial professional indemnity insurance which will step in and pay the compensation in the event of a successful negligence claim.
In many cases it is the professionals’ insurers who have overall control of defending a claim, and they will primarily be concerned with trying to resolve it as cost efficiently as possible.
If you feel that you may have been let down by a negligent professional, and have suffered serious financial loss as a consequence, then please feel free to contact me and I would be more than happy to advise whether you may have a claim. Adam Blenkinsop dispute resolution solicitor adamblenkin[email protected]brenner.co.uk
ABOVE:If you’ve been let down by a professional you may be entitled to compensation