What qualifies as professional negligence?

Introduction

When receiving a professional service from an individual or firm, you would expect that service to be a certain standard, and that reasonable care and skill will be exercised by the professional delivering it.

However, the professional in question can sometimes fall below the standard of care expected, resulting in receiving poor advice or service, and suffering loss. Bringing a claim against a professional you have instructed and previously trusted to undertake work on your behalf can be incredibly daunting, so it is important to understand whether they are liable for professional negligence and if so, how this can be shown.

What is professional negligence?

Professional negligence arises where a professional fails to provide a service to the standard required of them, and this results in loss being suffered (usually by their client). To qualify for professional negligence, you need to establish that the professional breached their duty of care and that this breach caused you to suffer loss.

Professional negligence is slightly different to other types of negligence because of the standard expected of the professional due to their expertise. It often occurs in a contractual relationship between the professional and their client, such as when a retainer is in place between a solicitor and their client. However, professional negligence claims can also arise in other circumstances, such as where the professional owes a statutory or fiduciary duty to someone. This means that claims can also be brought by third parties against the professional in question, and not just by the client.

Different types of professional negligence

Professional negligence can occur in many different forms depending on the nature of the profession itself and the work that the professional has been instructed to undertake. It can range from the complete failure of the professional to carry out the services required, to the professional making a mistake when carrying out that work or even breaching professional codes of conduct they are bound by.

Some common examples of professional negligence scenarios are:

• Solicitors or barristers – providing incorrect legal advice; missing time limits or court deadlines; failing to identify key evidence in your case, resulting in an adverse result
• Conveyancers – failing to identify property defects on a property before completion; breaches in professional codes of conduct or breaches of confidentiality
• Financial advisers or accountants – providing incorrect financial advice or recommendations; failure to identify or advise correctly on tax liabilities or available relief
• Surveyors – providing an inaccurate valuation of a property; failing to identify latent defects within a survey on a property, such as wood rot or subsidence
• Architects – producing substandard designs for a building, which result in defects when constructed.

The list above is not intended to be exhaustive. Whether the professional in question has been negligent or not will all depend on whether they performed their responsibilities to the standard expected. This will differ on a case-by-case basis and on each occasion will involve analysing the nature of the professional’s duty of care and establishing whether they have breached it. In some circumstances, what is considered to be negligent in one case may not be so in another, depending on what the professional was instructed to do (or not do) and what standard was expected of them.

How do you establish professional negligence?

In order to bring a professional negligence claim, you must show:

1. A duty of care was owed by the professional;
2. The professional breached its duty of care;
3. The breach caused financial loss; and
4. The loss suffered is legally recoverable.

To establish whether the negligence in question qualifies as ‘professional negligence’, you will need to understand the scope of the duty of care owed by the professional and whether it was breached (steps 1 and 2 above).

The starting point is to look at the terms of the contract between the professional and the client and what their express or implied duties were when providing the service in question. It may also be necessary to look at other factors surrounding the relationship between the professional and the claimant, such as trade custom, relevant statutory provisions or any previous dealings between the parties.

By doing so, the claimant will need to establish that the professional fell below the standard of any reasonable member of that profession in those circumstances, in order to qualify as negligent.

Depending upon the type of professional you instructed previously and the type of breach, it may be necessary to obtain an independent expert opinion at an early stage to properly assess whether the professional breached their duty.

Conclusion

Professional negligence can arise in many different scenarios, and it’s often difficult to determine whether the professional’s actions (or omissions) qualify as being negligent. It’s therefore crucial to seek legal advice at an early stage to assess the merits of the claim and whether any issues may arise in establishing a clear breach of duty by the professional.

If you require advice on bringing or defending a professional negligence claim, please get in touch with our expert team.