How to make a professional negligence claim

A professional negligence claim arises when an individual or organisation, acting in a professional capacity, fails to carry out their duties to the expected standard of a reasonably competent person in their profession, resulting in damage or loss.

Such a claim differs from ordinary negligence claims, as it focuses specifically on the professional’s duty of care when carrying out their work. As a result of this failure, you may be considering a professional negligence claim – but what are the requirements?

If you think you may have a claim, contact our solicitors to assess your case and explain your options.

Examples of professional negligence

Professional negligence can arise in a wide range of areas, including:

• Legal – a solicitor missing a deadline to file a claim in court; failing to carry out searches or drafting errors in contracts during a conveyance; providing inadequate or incorrect advice; or mishandling client funds.
   
• Financial – an accountant or financial adviser failing to file an accurate tax return; improper auditing; failing to notice fraud; providing incorrect tax advice; or mismanaging pension funds.
   
• Construction – an architect designing a building that does not comply with building regulations, is unsafe, or not fit for purpose; a planning consultant providing incorrect advice; a surveyor overvaluing a property; or a contractor failing to carry out works to a high standard.
   
• Insurance – a broker mis-selling a product, failing to insure all risks as specified, or incorrectly handling a claim.

Key elements of professional negligence

To make a successful claim for professional negligence, you must prove, on the balance of probabilities, the following three elements:

1. Duty of care – you must prove that a legal obligation existed for the professional to take reasonable care when providing their services. This is usually established through the professional–client relationship, often by a contract, the terms and conditions, or any agreement.
    
2. Breach of duty – you must prove that the professional failed to meet the relevant standard of care required of their profession and breached the duty owed. Negligence will be established only if the professional’s acts or omissions fell below what a reasonable and competent professional in the same field would have done in similar circumstances. This is an objective test, and an error does not necessarily establish negligence, as the standard required is not one of perfection.
    
3. Causation – you must provide evidence that the professional’s breach of duty directly caused the loss or damage suffered. In other words, the loss would not have occurred “but for” their negligence. Loss and damage can include financial loss, physical harm, or other foreseeable negative consequences of the breach. For example, if you were bringing a claim against an insurance broker following a fire at your property where they had failed to insure the property adequately, you might need a surveyor’s report detailing the value before and after the negligent act.

Assessment of loss

Damages are generally assessed at the date of breach, but in professional negligence cases, the court can assess them by reference to another date if fair and appropriate. The aim is to put the claimant in the same financial position as if the wrong had not occurred.

Other considerations

Before commencing any claim, it is necessary to consider additional issues, including:

• The relevant time limits for issuing legal proceedings – the primary limitation period for professional negligence claims is six years from the date of loss, but there is also a secondary limitation period from the date of knowledge of negligence, and a long-stop date to claims.
   
• Whether you have mitigated the loss – a claimant must take all reasonable steps to avoid losses arising from the professional’s negligence and must not take unreasonable action that may exacerbate those losses.
   
• Your prospects of recovery – whether the professional has a professional indemnity insurance policy which could be claimed against, or whether there is a risk the professional could become insolvent and nothing is recovered.

The pre-action protocol for professional negligence

Compliance with the Professional Negligence Pre-Action Protocol when starting a claim is essential, and this is where you should instruct a solicitor to guide you through the process. (If the claim is construction- or healthcare-related, there are separate protocols.)

Once you have decided that there are grounds for a claim against the professional, you will need to prepare a comprehensive Letter of Claim setting out, amongst other things: a clear summary of events; the allegations of breach; the subsequent loss and damage suffered; and an explanation of how the breach caused that loss.

The professional should acknowledge the Letter of Claim within 21 days and then has three months from that acknowledgement to investigate and respond in a formal Letter of Response. If the professional is insured, the insurer or their solicitor is likely to reply.

The protocol is designed to encourage settlement without the need for costly and time-consuming court proceedings. If this is not possible and it becomes necessary to issue a claim in court, we can guide you through the process, focusing on commercial risks and minimising costs.

Next steps in making a professional negligence claim

If you believe you have a professional negligence claim, our solicitors can assess your case, explain your options, and guide you through each stage of the process. We represent clients in legal, financial, construction, and insurance disputes, helping them achieve the best possible outcome.

With offices in London, Brighton, East Sussex, and Cumbria, we support clients nationwide. Get in touch to discuss your situation in confidence.