Proving a Claim

The key issue when proving a claim is that the professional must first owe a duty to take care in their relationship with the claimant. Often such duties are defined by the extent of their contract with the claimant but there are relationships, such as solicitor and client, financial adviser and client etc in which a duty of care has already been identified in law.

There are also other ways in which a professional can be held to be liable. These may be complex but in investigating a claim we would advise of any additional rights of action should they become relevant.

Once the duty of care has been established the next step is to prove that 'on the balance of probabilities' the professional involved has breached that duty. In other words, has the professional failed to meet the standard of care that other professionals would have exercised in similar circumstances? The test 'on the balance of probabilities' is the usual standard of proof that a claimant needs to establish to succeed in a civil action. The standard of proof in a civil case is far below the standard of proof in a criminal case which is defined as 'beyond reasonable doubt'.

Having proved that the duty of care has not been met, the claimant must then go on to prove that the breach of duties has caused some loss. If another factor has caused the claimant loss, which was not directly caused by the negligence of the professional, then the claim will fail. Some important points to think about when considering a legal claim:

• Cases that may go to Court are known as litigation. Solicitors have a duty at the beginning of a matter to estimate the likely costs of a case. This can be difficult at the outset because an initial investigation may be needed to establish whether the claim is viable and what further steps need to be taken.
• A decision over whether or not a case should be taken forward is a question of balancing the financial and other risks involved against the benefits. Risk analysis includes:
  • Might the dispute be settled early?
  • Will the other side fight all the way?
  • If the claim succeeds will the other side be able to pay the compensation?
  • Will expensive expert evidence be needed?

For more information on professional negligence please contact Karim Mohamed.