Should I Stay Or Should I Go? Addressing Problems With Professional Advisers

In our business and private lives alike, we all rely on professional advice and expertise from many quarters. We know that the right professionals add value to our businesses or protect them from risk. We use professionals we can trust, and often have a relationship built up over many years. Sometimes, however, we have a suspicion that we may have been let down. Our business may have lost money and we think an adviser may be to blame. If not examined, that suspicion will taint an important relationship and undermine its value to us.

People can be reluctant to look into such issues. This may be because of loyalty to the professional concerned, a sense of embarrassment at having let the situation develop or uncertainty as to whether the advice given, or action taken or not taken, really was inadequate. It is nonetheless important to assess the position. If there is nothing in your suspicion, you can rebuild your trust in the adviser. If it proves that there is a problem, you can objectively assess how to deal with it.

You are paying for a service. You are entitled to be happy that you are getting what you are paying for and should not be afraid of challenging advice or other professional input. Such challenges do not have to be adversarial. With the benefit of a careful prior assessment, very positive results can emerge from informal or formal complaints procedures or even mediation, which can lead to an outcome which is satisfactory to all parties without irreparably damaging the relationship. Professional indemnity insurers are increasingly open to early resolution of complaints and claims by mediation.

So what factors will be taken into account in assessing whether you are entitled to redress from a professional for failings in the service provided?

The basic requirements for a claim against a professional are:

a duty owed; a breach of that duty; loss caused by that breach. Proving that the professional's act or omission style="text-decoration: underline;">caused the loss suffered is a frequent stumbling block.

A professional adviser may incur liability for breach of contract and/or beach of a duty of care owed in the tort of negligence. Less commonly, liability can arise from breach of fiduciary duty or breach of statutory duty.

The first question to consider is what was the professional engaged to do? The starting point will be the contract – what has been agreed. The agreement need not be in writing. In some cases only part of it may...