Whenever you provide advice or services in a professional capacity, you’re entering into something called the duty of care. The duty of care assumes that both parties will behave professionally and deliver advice or services up to industry standards. However, if you fail to perform to these standards and your client suffers harm as a result of your actions—or inaction—you are culpable of professional negligence.
Professional negligence can take many forms, including (but not limited to):
Accountant negligence (e.g. an accountant gives poor financial advice that leads to loss)
Legal negligence (e.g. a lawyer who doesn’t prepare adequately and fails to provide legal advice up to reasonable standards)
Architectural negligence (e.g. an architect designs a building but fails to consider all government regulations)
Clinical negligence (e.g. a doctor doesn’t take necessary precautions before surgery)
All businesses are at risk of professional negligence claims. All it takes is one oversight or mistake that damages your client’s good reputation, loses them money, or causes personal injury—and voilà, you have a lawsuit on your hands.
But businesses that offer advice in a professional capacity are especially vulnerable. This includes, but is not limited to, accountants, architects, barristers, consultants, engineers, financial advisers, insurance brokers, investors, and surveyors.
People working in the medical care industry need to be especially diligent and always take proper care—according to the according to NHS Resolution, over 10,000 medical negligence claims were lodged, and £1.3 billion in compensation payments paid out, in 2014 and 2015.
You can make a professional negligence claim provided these three things hold true:
1. Duty of care – You entered into a contract in which you were owed a duty of care. As evidenced in the Donoghue v. Stevenson case study, this does not always have to be a written agreement.
2. Breach of duty – The professional who advised you did not do so to the best of their ability and did not meet the standards that one would expect from a professional in their position.
3. Loss suffered – You have demonstrably suffered loss as a result of their negligence. If you suffered no loss, your claim would not usually succeed—even if the professional was negligent.
Note that a professional who gives advice that later turns out to be wrong is not necessarily being negligent, so long as their advice was based on solid evidence and they took every reasonable precaution. As long as the professional operated within reasonably expected standards and warned you of all potential risks, they cannot be blamed for the loss incurred.
However, if the above does not hold true and you’ve been the victim of professional negligence, you should hire professional legal representation and seek action. You must follow the procedures described in the Civil Procedure Rules (CPR) 1998 or else you may incur penalties or have your case thrown out of court. These procedures show that you and the defendant have tried to settle your claim without taking it to court.
Filling out a Letter of Claim is one such condition you must meet. This involves corresponding directly with the individual who has wronged you to confirm the chronological summary of what transpired, your allegations, and whether or not you’ve appointed expert counsel. The negligent professional then has 21 days to respond to the letter and three months to investigate your claim.
Before writing a Letter of Claim, carefully consider what you expect from the defendant (e.g. an apology, safeguards, compensation, etc.) and get professional advice to weigh potential benefits against potential risks. Professional solicitors can also help you draft your claim, ensure that you have a strong case before you proceed, and even correspond with the negligent professional on your behalf.
Slater Gordon, Professional Negligence Solicitors, Irwin Mitchell, and all of the other law firms mentioned in this article’s case studies are just a few of the solicitors available to help you in the UK.
Most professional negligence claims must be brought within six years of the breach of contract. This period may be extended if evidence of negligence only becomes apparent much later down the line, but negligence claims have a long stop date (i.e. the final date you can make a claim) of 15 years.
How you mitigate your liability will differ from profession to profession, but you can take some general precautions to help limit your risk. These precautions include:
Always act in the best interests of your client.
Warn clients of all potential risks.
Keep your workspace safe.
Find all the information you need before proceeding (e.g. medical history, government regulations, etc.)
Only use tools and equipment for their intended purpose.
Properly train your staff.
Ensure all staff members are properly certified.
Provide proper maintenance and supervision whenever necessary.
Don’t provide advice outside of your purview.
Never share confidential client data.
Take out professional indemnity insurance.
At Towergate, our professional liability policy provides cover for both professional indemnity and public liability meaning you only need one policy. Visit our professional indemnity insurance page or call 0330 123 5128 for more information.
Alison Wild BCom (Hons), MAAT, MATT, Taxation Technician is a highly respected industry professional who has been working with and advising SMEs in areas including tax, pensions, insurance and marketing for over 25 years. She is a member of the Association of Accounting Technicians (AAT) and Association of Tax Technicians (ATT) and also has over 20 years' experience as a residential landlord.
Date: December 19, 2016
Category: Small Business