We come across professional negligence claims a lot and not just in respect of solicitors, but professionals in general. It is important to understand that a professional who gives advice which later turns out to be wrong is not instantly deemed as professional negligence. The legal position is more complex than that and this article explains why. A successful claimant will need to demonstrate that he or she was owed a duty of care by the defendant professional, the professional breached the duty of care and the breach caused the claimant a loss. What is a duty of care? A duty of care is a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. A professional may owe various duties to their client. These can be duties resulting from a code of conduct imposed by a professional body, to contractual duties resulting from written terms of engagement between the professional and their client. Not all duties result from a written agreement or document. In other cases, a duty of care can be implied such as when a professional has held himself out as having certain expertise. Usually, a professional negligence claim comes from the person who has instructed the professional. However, that is not always the case, as there may be duties owed to third parties who should have been within the reasonable contemplation of the professional at the time of the complaint. Has the professional been negligent? To bring a successful claim, you must establish a breach of professional duty by proving that firstly, the professional’s conduct fell below the standard of a reasonably competent professional in the same area of expertise and secondly, that this breach caused you a loss. For example, consider a solicitor who advises you on employment law and who’s advice reflects the common body of opinion held by other experts in the field. If the law moves on and the solicitor’s advice turns out later to have been wrong, this does not necessarily make them negligent. The advice they gave simply reflected that which would have been given by another competent solicitor with expertise in the same field. The solicitor would only have to show that they acted in a way which was regarded as proper by a reasonable body of professional opinion. A contrary example would be the solicitor who failed to keep themselves up to date with developing case law and then gave incorrect advice which failed to reflect how the law had changed. In this instance, the solicitor would be struggling to find a defence to the claim that they had breached their duty to the client and if a loss had been suffered as a result, the client would have a claim in negligence. In Professional Negligence Part 2, we will consider whether the act of negligence caused the loss and the various factors which should be considered when calculating loss. The law regarding professional negligence is complex, with many potential pitfalls.
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Professional Negligence Part 1 – My solicitor got it wrong…I want to claim against them!
About the Author: Neil Kelley
Neil is a director at Griffin Law, and is also the head of Griffin Law's litigation and dispute resolution team. He has over twenty years’ experience in dispute resolution.
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