In Professional Negligence Part 1, we considered the duties of solicitors and other professionals and what constituted an act of negligence (read the article here). In part 2, we consider the circumstances in which a claim can be made.
One of the potentially most complex areas of law in respect of a negligence claim is that of causation: did the negligent act of the professional cause you the loss?
To establish this, the facts need to be scrutinised. A professional could have been negligent, but if this did not cause the loss, there can be no claim.
Consider some scenarios…
A conveyancing solicitor acts for a buyer in respect of the purchase of a property with development potential and fails to advise the buyer that there are various restrictive covenants attached to the title. Having purchased the property, the buyer proceeds to make various planning applications, only to find that the restrictive covenants prevent or restrict development of the site. The existence of restrictive covenants is something that a conveyancing solicitor should bring to the attention of a buyer, to enable that buyer to make an informed decision.
In this scenario, the buyer has a claim. The solicitor’s negligence can be said to have caused the loss because with the correct advice, the buyer would not have made the purchase of the property.
A buyer loved a property and notwithstanding the advice he received from his conveyancing solicitor, was going to purchase the property in any event. If the buyer later attempted to develop the property but was prevented or restricted by the existence of various restrictive covenants that had not be brought to their attention previously, the solicitor has an arguable defence that the buyer would have bought the property regardless.
In this scenario (arguably), the buyer does not have a claim. The solicitor’s act of negligence was not causative of the buyer’s loss.
How do you quantify the loss?
Put simply, damages awarded should put the claimant in the position they would have been in, had the professional not been negligent.
Where a surveyor overvalues a property for a buyer who purchases in reliance upon that valuation, the quantum of the loss is arguably the difference between the valuation and the actual market value.
There is a potential claim but not necessarily for the whole difference. The amount of damages can be reduced and in this scenario, by a factor such as the buyer’s failure to mitigate the loss, which means the surveyor cannot be held entirely responsible (contributory negligence).
A contributory negligence scenario could be…
If a buyer defaults on a loan to purchase a property and the lender makes a claim against a valuer for negligently overvaluing the property which was the security for the loan. The lender may be deemed contributory negligent if it was reckless, before making the loan, in checking whether the borrower has sufficient means to make the debt repayments.
There is a potential claim here.
If the party fails to take reasonable steps to mitigate the loss, a court could reduce the amount of any damages it awards. The claimant cannot simply allow the situation to deteriorate and expect to claim all of their losses from the original, negligent professional. They have a duty to take such steps as they can, even if it means incurring some expense themselves, to minimise the overall loss.
The law regarding professional negligence is complex, with many potential pitfalls. If you think you have suffered a loss as a result of professional negligence and want an informal, initial conversation, please call Neil at Griffin Law on 01732 525923 or email email@example.com.
If this subject interests you or you have been affected by it, in our Professional Negligence Part 3, we look at the next steps including the court procedure and the application of the pre-action protocol.