Orr Litchfield

Solicitors and Business Lawyers

Professional Negligence Claims

1. Professional advisers, disputes & negligence

It is increasingly common for businesses and individuals to rely on a range of different professional advisers for the provision of specialist services. This may include professional advisers in the financial, medical, legal, property or other sectors.

Unfortunately, sometimes professional advisers do not perform their services in the correct way. In such cases, businesses and individuals may suffer significant damage or loss. Where this happens, the business or individual that has been damaged or suffered loss may have a claim for professional negligence.

Many individuals, businesses and professional advisers will come across unexpected issues and disputes in connection with the provision of services by professional advisers at some point. When they arise, it is usually important to be able to manage and resolve the relevant issues as efficiently and effectively as possible in order to minimise disruption, save time and costs and avoid causing any damage to reputations. Where circumstances permit, the pro-active management of issues and disputes relating to the provision of specialist services by professional advisers may enable the parties to maintain or even strengthen their relationship.

2. Advising and assisting you on professional negligence claims

Whether you are a claimant or a defendant in relation to a professional negligence claim, we are able to provide efficient and effective legal advice and support in relation to professional negligence claims using our legal knowledge, experience and commercially focussed approach to resolve the relevant professional negligence claim in a way that is right for you and your business.

3. Resolving professional negligence claims

There are several key stages in assessing and resolving issues and disputes relating to professional negligence. These include:

(a) Step 1 - Identifying the duty of care and determining whether it has been breached

In order to succeed in a claim for professional negligence, a claimant will need to be able to show that the professional services provider owed the claimant a duty of care, that the duty of care was breached and that the breach caused the claimant to suffer loss.

Accordingly, at the outset, it is vital to determine whether the professional services provider owed the claimant a duty of care and, if so, the nature and extent of that duty of care and whether any part of it was breached. This is not always a simple task.

Professional negligence claims can arise in a number of ways, for example, through administrative, technical or legal errors or even a disregard for a client’s best interests.

It is usually helpful to identify, in detail, exactly what services were supposed to have been provided by the professional services provider, what services were actually provided and in what way those services were defective. The parties will need to produce evidence (for example, any contract made between the claimant and the professional services provider, written communications or pictures) in order to support their case as to whether there has been professional negligence. In certain circumstances, expert evidence may be required.

We can advise as to whether the professional services provider owed the claimant a duty of care and, if so, the nature and extent of that duty of care and whether it has been breached.

(b) Step 2 - Determining whether the breach of duty of care has caused the claimant to suffer loss and what remedies may be available

Once the relevant breach of a duty of care has been identified, it is necessary to determine whether that breach of duty of care has caused the claimant to suffer loss and, if so, what remedies may be available.

We can advise as to whether a breach of duty of care has caused the claimant to suffer loss and, if so, what remedies may be available and consequently help determine whether it is likely to be in your interest or the interests of your business to pursue or defend the professional negligence claim.

(c) Step 3 - Seeking an early resolution for professional negligence claims

Normally, it is in the interests of the parties to identify and resolve any issues and disputes relating to the provision of specialist services by professional services providers efficiently and effectively so that they can continue to progress any on-going arrangements in an acceptable manner.

Where there is a contract, the contractual terms may include provisions relating to the rectification of certain issues and the resolution of disputes. Where this is not the case, it is often sensible to try to take steps to resolve any issues or disputes relating to the provision of specialist services by professional services providers. By way of example, the parties may agree to try to achieve resolution through direct discussions or some form of alternative dispute resolution.

(d)   Step 4 - Letter before action

Where it has not been possible to resolve any issue or dispute relating to the provision of specialist services by professional advisers, it may be that it is necessary to formally notify the other party (or parties) that legal action will be taken unless the relevant issue or dispute is resolved satisfactorily. This notification is usually sent in the form of a ‘letter before action’. It will, amongst other matters, set out the complaining party’s legal position, the outcome the complaining party wishes to achieve and the steps it proposes to take if a suitable agreement is not concluded.

 

We can prepare appropriate and effective letters before action and advise you on subsequent communications with a view to helping resolve professional negligence claims.

(e) Step 5 - Alternatives to litigation for professional negligence claims

It has become more and more common for parties which are in dispute to use alternative methods of resolving disputes prior to issuing legal proceedings or during the litigation process (typically at an early stage). The 4 main alternative methods of resolving disputes (commonly called ‘Alternative Dispute Resolution’ or ‘ADR’) in the UK other than court proceedings are negotiation, mediation, arbitration and conciliation.

Whilst ADR is not suitable for every dispute, courts often expect disputing parties to take steps to resolve disputes prior to commencing legal proceedings or at an early stage of the litigation process. An unreasonable refusal to do so may result in the court imposing sanctions (typically in the form of costs penalties) on the relevant party.

We can advise on the relevant form of ADR and assist you in relation to the ADR process with a view to helping resolve any contractual disputes.

(f) Step 6 - Court proceedings for professional negligence claims

If it has not been possible to resolve a dispute, it may be that the only way forward is to commence formal legal proceedings. Where that is the case, we can help prepare your claim and provide clear advice on legal, procedural and tactical issues in order to assist you through the litigation process efficiently and effectively.

Contact us

If you would like more information about professional negligence claims or would like to discuss a potential or existing dispute, please email us at enquiries@orrlitchfield.com, complete an Enquiry Form or call us.