Professional Negligence And English Law

What is professional negligence?

Professional negligence exists when a professional (for example: surveyors, accountants, lawyers, valuers, professional trustees) within his specific area fails to meet the required standard of responsibility (i.e. has been negligent) and, as a result of his actions, has caused another party to suffer loss enabling a claim to be brought against him. Such actions include: breach of duty of care in tort; breach of a contractual term; breach of a fiduciary duty; or breach of a statutory duty. Damages for such claims seek either to put the claimant in the position he would have been in if the contract had been properly performed (contractual negligence claims) or to put the claimant in the position he was in prior to the tort taking place (negligence claims in tort). Generally, only under contractual negligence claims can the claimant seek to recover future economic loss.

The claim is usually brought by the professional's client, although there are occasions where it is possible for third parties to also take action. For most professions, professional indemnity insurers will be involved, even before solicitors are instructed, and the professional's role in the matter may become secondary as the insurers take an active role in managing the claim.

When bringing or defending a claim there are certain steps that need to be followed under the Professional Negligence Pre-Action Protocol, these are explored in more detail below.

The basic requirements

A negligence claim requires evidence to show that the professional breached his duty to the claimant, that the claimant relied on the actions (in most instances, the advice) of the professional, and that the breach caused the claimant loss. Should there be any break in the chain, this may enable the professional to raise a defence. In contract the standard of care may be expressed in the contract itself or by statute (i.e. the requirement for reasonable care and skill under section 13 Supply of Goods and Services Act 1982). Whilst the standard of care owed in tort is broadly that the error made by the professional is one that no reasonable member of his profession, in the same circumstances, would have made. It is important to remember that the professional may owe duties both in contract and in tort (see below).

However, professionals' duties are not endless and certain limits have developed through common law, for example, solicitors are not expected to give commercial...