What is professional negligence and what can you do about it?
Clients turn to professional advisers – solicitors, accountants or chartered surveyors – to help solve some of their most pressing problems. However, as the cost of living crisis continues to bite, what can you do if you are concerned about the level of service that your professional adviser is providing (or not providing)?
What is professional negligence?
Suppose a professional adviser fails to provide their service to you to the required standard. In this case, that is called ‘professional negligence. As a dissatisfied client, you could bring a legal claim for professional negligence against that adviser.
Does my professional adviser owe me a duty of care?
The first step in understanding whether you have a viable professional negligence claim is determining if your professional adviser owed you a duty of care. This is a legal responsibility to exercise reasonable care and skill when providing their professional service to you.
To prove that your professional adviser owed you a duty of care, you would need to show that:
- The professional adviser assumed responsibility towards you; and
- You relied on the professional adviser’s assumption of responsibility towards you
Did my professional adviser assume responsibility towards me?
This depends largely, but not exclusively, on the terms of the contract or retainer between you and your professional adviser, which is usually, but not always, in writing. Even if the contract or retainer is in writing, it can also include unwritten or “implied” terms, such as requiring the professional adviser to provide their service to you with reasonable care and skill.
Where there is a written contract with the professional adviser concerning a specific issue (e.g. a conveyancing transaction for a particular property), the professional adviser’s assumption of responsibility towards you will be limited to matters connected with that issue.
As a result, a professional adviser assuming responsibility towards you regarding a specific issue will usually not be treated as having assumed any responsibility to give you general advice or any advice not related to the specific issue for which they are providing a service.
It is essential to seek legal advice concerning any disclaimers or exclusion clauses that may be included in a professional adviser’s written contract or retainer (e.g. an engagement letter or terms and conditions). This is because such clauses could exclude or limit a professional adviser’s liability to you relating to their negligence.
It is illegal for a professional adviser to exclude or limit their liability for death or personal injury caused by negligence. However, a professional adviser can exclude or limit their liability for other losses and damage caused by negligence, but only where it is reasonable for them to do so. It would be up to the professional adviser to prove why its disclaimers or exclusion clauses are reasonable.
Where there is no written contract or retainer, or if a specific issue is outside the scope of the contract or retainer, then a professional adviser may be treated as having voluntarily assumed responsibility towards you if they assume responsibility for an additional issue by, for example, providing advice concerning that additional issue.
Suppose a professional adviser provides advice or does a task outside of the specific issue where they have agreed to provide a service. In that case, they are more likely to be treated as having assumed responsibility towards you if you are an inexperienced layperson rather than a sophisticated business client.
Did I rely on my professional adviser’s assumption of responsibility towards me?
Suppose your professional adviser did assume responsibility towards you. In that case, you then need to be able to provide that you relied on their assumption of responsibility towards you at the time. Simply put, if you did not rely at the time on the professional adviser assuming responsibility towards you, then any negligence (i.e. carelessness) by the adviser could not have caused you to suffer any loss or damage.
Part two of Kumaran’s article will explore how you can prove that your professional adviser has been negligent.