Elysium Law

Professional Negligence

PROFESSIONAL NEGLIGENCE

 

Professional Negligence

If the advice you were given by a professional adviser causes you loss, you may have a claim. It is important for these types of claims to prove that there has been a loss and that the professional breached their duty of care to you when carrying out your instructions.

The essential elements to prove are:

  • That the professional owed you a duty of care. This duty might arise from a contractual relationship between you and them, or because there was a particular relationship that gave rise to the need for them to be careful

  • That duty must have been breached by poor advice or work on the part of the professional.  The test is “did that professional do what a reasonably competent persons in their position would have done.

  • Did the breach cause loss. 

  • If those elements are present- then a claim can be made.

The Claim Process

Professional negligence actions are commenced under what is known as the Pre-Action Protocol. The Pre-Action Protocol for Professional Negligence Claims must be used in all professional negligence cases other than those against construction professionals such as architects and quantity surveyors and medical professionals where other specific protocols are used.  

The protocol applies for claims against solicitors, accountants, financial advisers, surveyors and banks.

The pre-action protocol encourages an early exchange of information, the narrowing of issues and consideration of alternative methods of dispute resolution (ADR), which aims to promote settlement of disputes without the parties litigating via the court process. The aim of the protocol and what is known as the overriding objective of the court rules is that the initiation of court proceedings should be seen as a last resort in resolving disputes.

The protocol sets out standards which need to be followed before court proceedings are started.

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Time Limits for Bringing a Claim

The primary limitation period

In general, there are two time limits for professional negligence claims. They are either based on contract or the common law tort of negligence. Under contract law, a claimant has six years from the date of the breach of contract to bring a claim. Under the tort of negligence, a claimant has six years from that date when they suffer a financial loss as a result of a negligent professional. These periods are both known as the Primary Limitation Period.

If you try to make a claim after this point in time then it is likely that your case will be time barred. The time limits are outlined in the Limitation Act 1980.

The secondary limitation period

In some instances (for example in claims that are for negligence only), the time limit may be extended if the negligence is discovered at a later point in time (e.g. after the Primary Limitation Period). This is known as the Secondary Limitation Period. The time limit in these instances is three years from the Date of Knowledge, which is the date you become aware (or ought to have been aware) of the negligence.

Funding the Claim

Should it be determined that your claim is eligible, in most cases we will be able to offer a Conditional Fee Agreement, also known as a “No Win No Fee” agreement.

There are several advantages to this arrangement for you as the client.

Firstly, it shows we are confident your case has a strong chance of success.

Secondly, it protects you financially, as if there is no win, there is no payment made. In addition, it provides a clear framework for payment that all sides understand, rather than there being hidden charges down the line.

We are able to provide advice if you have been let down by one of the following professionals:

Solicitors, Barristers, Engineers, Architects, Surveyors, Accountants, Builders/contractors