MYTHBUSTER’S GUIDE TO Pro­fes­sional neg­li­gence claims

EDP Norfolk - - LAW -

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]­bren­

ABOVE:If you’ve been let down by a pro­fes­sional you may be en­ti­tled to com­pen­sa­tion

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