A Quick Guide to Successfully Pursuing Professional Negligence Claims
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A Quick Guide to Successfully Pursuing Professional Negligence Claims
What is professional negligence?
Professional negligence occurs when a professional fails to exercise the level of skill and care expected of them, and unfortunately results in financial loss to their client.
Unlike ordinary negligence, professional negligence involves a breach of duty by someone with specialised knowledge or skills. This type of claim can involve various professionals, including lawyers, accountants and architects.
Key Elements of a Professional Negligence Claim:
To make a successful claim for professional negligence, you need to prove four key elements:
Duty of Care: Firstly, you must show that the professional owed you a duty of care. For example, if you had a formal agreement, such as a contract or a recognised professional-client relationship; these are considered a known duty of care.
Has the Professional Breached their Duty? Next, you need to prove that the professional did not meet the standard of care expected of someone in their field.
This is assessed by comparing their actions to what a reasonably competent professional would have done. We suggest looking into what the accepted practices and standards are within their profession and how the professional matches against them.
Result of Negligent Actions: Now, you must clearly demonstrate that the breach of duty by the professional directly caused you harm or loss. It’s important that you clearly state that the harm and or loss caused would not have happened if the professional was competent.
Evidence of Financial Loss: Finally, you need to show that you have personally suffered actual financial loss as a direct result of the professional’s negligence.
This is important because without evidence of financial loss, there is no basis for compensation. The law requires clear proof that the professional’s failure directly caused you measurable harm.
Once all these elements are in place, you have a well-supported claim with the necessary evidence to pursue legal action against the professional. This process, referred to in legal terms as “bringing a claim,” is explained in detail below, and we will guide you through each step.
Steps to bring a professional negligence claim:
Preliminary notice – The first step is as soon as you have reasonable grounds to suspect negligence, notify the professional in writing of your potential claim. This is called a Preliminary Notice, and it simply informs them that you may make a claim against them.
Letter of acknowledgement – After receiving the Preliminary Notice, the professional (or their representative) should respond within 21 days of receiving the Preliminary Notice. This response is called a Letter of Acknowledgement, it confirms they have received your notice.
Letter of Claim/Letter Before Action – The next step is to send a Letter of Claim, which is a detailed explanation of your complaint. It should include:
- A clear summary of what happened,
- Why you believe the professional acted negligently,
- How this negligence has caused you harm or financial loss,
- A calculation of the financial losses you have suffered.
Letter of response – Once the professional receives your Letter of Claim, they must:
- Acknowledge the Letter of Claim within 21 days of receiving it
- Send a full response within three months (unless both sides agree to more time).
In the Letter of Response, the professional may; admit they were at fault, or deny your claim; in which case they will have to explain their reasonings.
Court proceedings – If the professional denies your claim and doesn’t offer to settle, you can take the matter to court. However, before starting court proceedings, both sides are encouraged to consider alternative ways to resolve the dispute.
Alternative Dispute Resolution (ADR) – ADR includes options like mediation or settlement discussions, which aim to resolve the dispute without going to court. Both parties should consider ADR throughout the process, even after court proceedings have started.
If one party refuses to try ADR without a good reason, the court can penalise them later. For example, even if you win the case, the court might reduce the legal costs you’re awarded if you refused ADR unreasonably.
How Rix & Kay Can Help
If you think you may have a claim for professional negligence or need help defending against one, our team is here to support you. Please contact Katie McClean in our Dispute Resolution team, via email or call her on 01273 766 929 today.