25 June 2019

Professional negligence and limitation

What is professional negligence

 

Professional negligence occurs where a professional such as an accountant, a solicitor and an architect fails to perform their responsibilities to a required standard. A professional negligence claim could be based on one or more of the following:

• Breach of a contractual term (express or implied)
• Breach of duty of care
• Breach of fiduciary duty (which is where one person acts for the benefit of another)
• Breach of statutory duty.

A claim against a professional can be brought by their client or third parties, depending on the circumstances.

 

What is limitation and why it is important?

 

The basic limitation period for bringing a claim against a professional is six years from date on which the negligence happened. The key question is; how can it affect you if you leave the claim until the very last day of that period?

The Court of Appeal found, in Matthew and others v Sedman and others [2019] EWCA Civ 475 (Matthew), that minutes and hours can matter as much as days, when it comes to limitation.

In this case, the claimants issued a professional negligence claim against solicitors for failing to issue a claim before the limitation expired.

The questions put before the judge were (a) when did the negligence happen and (b) how is the limitation period calculated?

 

Timing

 

The judge held that “where it is absolutely clear that the cause of action arises at the very beginning of a particular day, that day should not be excluded from the calculation for Limitation Act purposes. At any moment during that day, the claimant can bring a claim; and to exclude that day from the calculation for Limitation Act purposes would have the effect of giving him an extra day over and above the statutory limitation period for bringing the claim.”

 

What does this mean for you?

 

The limitation period runs from the date the negligent advice occurred to 11:59pm on the last day of the limitation period, not the day after the cause of action. Do not leave your professional negligence claims to the very last minute.

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About the Author
Claire Holford, Partner
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