How to claim for professional negligence

When receiving the services of a professional, you expect to receive the highest level of expertise, skill and attentiveness to meet your requirements. If, however, the professional fails to uphold their contractual obligations, neglects crucial duties, or commits errors, you may be eligible to make a professional negligence claim.

If you believe that a professional has displayed negligence in delivering a service to you, seeking advice from a solicitor is important. These legal experts can assess your circumstances and determine if you have sufficient grounds for a professional negligence claim.

What is considered professional negligence?

Professional negligence, also referred to as malpractice or professional misconduct, occurs when a professional failed to meet the expected standards of care within their field, leading to harm or detriment to their client or patient.

This type of negligence is commonly associated with a variety of professionals, such as doctors, lawyers, accountants, architects, engineers, insurance brokers, and other licensed practitioners who owe a duty of care to their clients or patients. Claims against professionals are typically directed towards their professional indemnity insurance.

Examples of professional negligence include medical misdiagnoses or errors, legal malpractice, negligent advice, financial mismanagement, fraudulent activities, and flaws in architectural or engineering designs.

Who is eligible to make a professional negligence claim?

To qualify for a professional negligence claim, you must demonstrate the following:

• The professional owed you a duty of care.
• This duty of care was breached.
• The breach of duty resulted in a loss, whether financial or otherwise.
• The loss caused was reasonably foreseeable.

It is important to note that the ability to pursue a claim can vary depending on the type of professional involved and the specific circumstances. In England and Wales, the time limit for professional negligence claims is six years from the date of the negligence or, if later, from the date the claimant became aware of it.

It is crucial to seek advice from an experienced professional negligence lawyer quickly to evaluate your eligibility for filing a claim and ensure that the claim is made within the specified limitation period.

How to claim for professional negligence

Outlined below are the relevant steps to make a professional negligence claim:

Consultation with a solicitor:

Before you start a professional negligence claim, the initial step is to seek advice from a solicitor who specialises in professional negligence. The solicitor will assess the case and provide guidance on its potential success and estimate the financial value of the claim.

Preliminary notice

The first step in professional negligence proceedings is to notify the potential defendant(s) in writing as soon as you determine that there is a reasonable likelihood of bringing a claim. The preliminary notice should contain the following information:

• The identity of the claimant and any other parties;
• A brief outline of the grievance;
• A general indication of the claim’s financial value, if possible; and
• A request for the professional to notify their professional indemnity insurance.

Upon receiving this letter, the defendant professional should acknowledge receipt within 21 days.

This preliminary notice is crucial as it alerts the professional to notify their professional indemnity insurance. Failure to do so may invalidate their insurance policy.

Letter of claim:

If the solicitor determines that there’s a viable claim, they will send a letter of claim to the professional in question. According to the Professional Negligence Pre-Action Protocol (PAP), the Letter of Claim should include the following information:

• The identity of all parties involved in the dispute or any related dispute;
• The key dates and facts on which the claim is based, along with copies of all relevant documents;
• Reasonable requests for documents held by the professional;
• Details of any allegations made by the claimant against the defendant;
• An estimate of the financial loss caused by the alleged negligence, including an explanation of how the amount was calculated;
• Confirmation of whether an expert has been appointed to provide evidence;
• A request for the Letter of Claim to be forwarded to the professional’s indemnity insurers;
• An indication of whether you agree to adjudication as a means of resolution. If you do, propose three adjudicators or seek a nomination. If you do not agree to adjudication, provide the reasons for your refusal.

The professional then has a limited time to respond and inform their professional indemnity insurance provider. Alongside the letter of claim, you should also send Letters of Claim which have been sent to any other parties in relation to the same dispute or a related dispute.

Gathering evidence:

According to the Pre-Action Protocol for professional negligence, parties must compile all relevant evidence before initiating court proceedings.

Negotiation:

Before resorting to court action, both parties involved in the dispute must engage in discussions and exchange information to explore the possibility of reaching a settlement.

Issuing a claim:

If settlement talks fail, the solicitor can proceed to file a claim in court. The claim form outlines the allegations of negligence and the compensation sought. The Civil Procedure Rules 1998 should be followed when conducting litigation.

Defence and counterclaim:

The professional must respond within a set timeframe by filing a formal status of a defence. They may also file a counterclaim if they believe the claimant is at fault. A claim might be dismissed if insufficient evidence of negligence is presented.

Discovery and witness statements:

Relevant documents and witness statements are exchanged between the parties to prepare for trial.

Settlement negotiations:

Negotiations for a settlement may continue at any stage before the trial.

Court proceedings:

If a settlement cannot be reached, the case proceeds to trial, where a judge evaluates the evidence and issues a verdict. 

How to claim for professional negligence – FAQS

What are the potential outcomes or remedies available if a professional negligence claim is successful?

The primary remedy in successful claims is financial compensation. This aims to put the claimant back in the position they would have been in had the negligence not occurred. Compensation can cover direct financial losses, additional costs incurred, and sometimes loss of earnings.

In some cases, especially where financial compensation is not adequate, the court may order the professional to perform a specific act, such as completing a task they failed to finish or rectifying a mistake.

Although less common in professional negligence cases, an injunction may be granted to prevent the professional from continuing a harmful action or to compel them to take a specific action.

Sometimes, the claimant may also seek a formal apology as part of their settlement, although this is more about personal satisfaction than legal remedy.

How are the costs of pursuing a professional negligence claim handled, and who is responsible for these costs?

Initially, the claimant is typically responsible for their legal costs. However, many solicitors offer a “no win, no fee” arrangement, particularly in strong cases, where the solicitor’s fees are payable only if the claim is successful.

If the claim is successful, the court may order the professional (or their insurer) to pay most of the claimant’s legal costs. However, there might be some expenses that the claimant has to bear themselves.

Some claimants may have legal expenses insurance (as part of their home or car insurance policy) that covers the costs of pursuing a claim. Legal expenses insurance, known as after the event insurance, can also be purchased from an insurance broker at any point during a legal case.

What role does the professional’s indemnity insurance play in the claims process, and how might it affect the outcome of a claim?

Once notified, the professional’s indemnity insurance provider often takes over the management of the claim. They will assess the claim, decide on whether to settle or fight it, and negotiate with the claimant’s solicitors on the professional’s behalf.

Insurers are generally inclined to settle claims efficiently to avoid the costs and uncertainties of court proceedings. This can sometimes result in earlier and potentially more favourable settlement offers for claimants.

The coverage limits and exclusions of the professional’s insurance policy can affect the outcome of a claim. If the claim exceeds the policy limits or is not covered due to specific exclusions, the professional might have to pay out of pocket, impacting their willingness to settle. 

How can Expert Commercial Law assist?

Our panel of solicitors have many years of experience in dealing with professional negligence disputes against professional advisors. We have dealt with cases involving professional negligence claims against solicitors, accountants, financial advisors, and much more.

We understand the complexities and emotional toll that come with making a professional negligence claim. Our panel of highly skilled and experienced law firms have a deep understanding of this area of law and are dedicated to providing tailored and compassionate support to each of our clients.

Our commitment to excellence and our track record of successful outcomes are testament to our ability to deliver results. You can trust that our panel firms will work tirelessly to achieve the best possible outcome for your case without the financial burden of upfront fees. Choose us for dedicated and experienced representation, and let us help you secure the compensation you deserve.

We only connect you with the best solicitors

All of the solicitors on our panel have the experience and expertise required to take on your case. Each solicitor is vetted before being allowed onto our panel and we only select the best in the business. All of our solicitor firms are authorised and regulated by the Solicitors Regulation Authority (SRA).

Please note we are not a law firm of solicitors; however, we maintain a panel of trusted and regulated legal experts. If you contact us in relation to a case, we will pass your case on to a panel firm in return for a fee from our panel firms. We will never charge you for passing on your case to a panel firm.