Professional Negligence
Professional negligence is a difficult area of law because in order to bring a claim against a professional, one must be able to establish that they have fallen below the standard which can reasonably be expected of such a professional, and that it has caused loss and damage.
A duty exists when a person assumes responsibility to perform professional services for someone who relies upon that service. A duty in tort to exercise 'reasonable skill and care' arises even if the services are performed under a contract between those parties.
In order to bring a claim in contract and tort, the Limitation Act 1980 requires that proceedings are issued within 6 years.
In contract the 6 years runs from the date of breach i.e. the date of the act or omission.
In negligence it runs from the occurrence of damage. It should be noted that damage is capable of occurring later than breach.
Our Litigation Team and in particular, Stephen Eccles and Kerry Hull have considerable experience of dealing with professional negligence cases. Some examples of cases that Stephen and Kerry have dealt with in the past are as follows:
We acted on behalf of a group of property developers who purchased a property in order to convert it into 12 flats for sale. Unfortunately the solicitor that they were using failed to protect their interests with regard to a pre-existing charge on the property as a result of which they did not have good legal title. They consulted Stephen Eccles who advised that there was a good claim in negligence. Liability was denied, the solicitors claiming that our clients were sophisticated businessmen who should have been aware of the risks in the particular transaction. Court proceedings were issued and progressed towards a trial, Stephen organised a mediation meeting and pursuant to that meeting the claim was settled with a payment from the solicitor's insurance company of £600,000.00.
Kerry acted for clients who were renovating and rebuilding a large residential home situated within a conservation area. During ground works, the Contractor negligently excavated a basement area causing part of the original building to collapse. Proceedings were commenced against the structural engineer in respect to negligence in the design and supervision of the contract work and against the main contractor for the manner in which the building and excavation work was carried out. The case was defended by both and at trial Kerry successfully obtained judgment against the Defendants in favour of her client for substantial damages.
Stephen was instructed by a client who had purchased a flat, but again they had not received good title and had been unable to register the purchase at HM Land Registry as a result of the fact that the vendor of the property did not have the right to sell the property without the consent of a third party. Our client's solicitors had failed to notice that the consent of the third party was required. Proceedings did not need to be commenced as correspondence resulted in the solicitor's insurance company paying sufficient monies (£30,000.00) in order to obtain the consent of the third party, thus enabling our client's title to be registered. Further loss and damage is the subject of continuing proceedings, but this illustrates the difficulties that straight forward conveyancing can cause when it is not done correctly.
Stephen has advised in claims against accountancy firms, particularly with regard to tax avoidance schemes which have not been successful. In cases such as this it is crucial to look at the terms of the agreement between the client and the accountants/tax advisers, in particular the terms of business and the retainer which existed. A retainer sets out precisely what professional service the professional will provide to the client, and is critical in considering professional negligence claims, as are the terms and conditions which may include restriction on liability clauses. Frequently these can be unenforceable pursuant to the Unfair Contract Terms Act 1977 and related legislation.
For advice on any professional negligence issues, please contact Stephen or Kerry who will be happy to advice clients on the telephone without obligation with a view to arranging an initial consultation on terms to be agreed.
Frequently these cases can be pursued with the benefit of any legal expenses insurance cover which exists. We always advise clients to check all insurance policies which they hold to see if they have relevant legal expenses cover. This can be part of a commercial insurance policy or a home insurance policy or even a car or credit card policy. It is always worth checking all your insurance policies to see if you might have cover available. Legal expenses insurance cover is never retrospective, so it is important to ensure that you inform us of any available policies as early as possible.
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