Professionals can and do make mistakes. Sometimes these can cause considerable loss to their clients. Claims can be complex or involve dealing with the professional’s insurers. That's where we come in. The professional negligence team at Mayo Wynne Baxter was set up specifically to help deal with complicated claims of professional negligence.
Our team of experienced professional negligence solicitors specialise in cases involving negligence by solicitors, barristers and accountants, financial service providers, financial advisors and property professionals (architects, surveyors, engineers and valuers). Our team boasts a number of lawyers who are property specialists. In fact, we are the only specialist team in the South East dedicated to deal with claims involving professionals.
Why choose us to handle your professional negligence claim?
We have a dedicated team specialising in claims against solicitors, accountants, surveyors, architects and other professionals so you can be sure you are in expert hands.
- Our team has the necessary skills and experience to help you through the process of making a claim and help you obtain compensation.
- We have a proven track record of settling cases.
- We have excellent relationships with expert witnesses, leading barristers and funders so we can achieve the best possible result for you.
- We are members of the Professional Negligence Lawyers Association
For more information on professional negligence please contact Karim Mohamed.
We can help you with claims against Accountants, Architects, Solicitors, Surveyors and claims against Personal Injury and Medical Negligence Solicitors
For more information on these areas, please contact Karim Mohamed.
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 you 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?
Time limits are crucial bearing in mind the following:-
- Claims against professionals. If you do not apply within statutory time limits you will lose the chance to pursue a claim. In most cases you have six years within which to lodge court proceedings. There are provisions which allow you to lodge court proceedings three years from the date you found out about your professionals’ negligence, but all these provisions are complicated and should not be relied upon because it will depend on the facts of the case. In essence working out time limits can be difficult and it is therefore important that you talk to a solicitor if you discover that you may have a claim.
- If you are challenging fees raised by your solicitor then you may be able to successfully challenge the solicitor’s bill. However the time limits here are very strict again and it is important that you take urgent advice on the nature of the case on which costs were incurred. There may be a situation where the costs estimate given by the solicitors may have been exceeded. Again, you have various remedies on which you must take legal advice.
- You may be complaining about the service provided by your professional - however each professional body has its own time limits. For complaints against solicitors in respect of the service provided, these must be brought to the attention of the Legal Ombudsman for England and Wales which was set up in October 2010 to resolve client complaints about their solicitors. Complaints must brought to the Ombudsman within six months from receiving a final response from your solicitors after complaining to them.
We will have to often ask you for information to help us run your case. Time limits may mean that you should not delay. If you think that any information is important or relevant, however trivial, please tell us. If in doubt speak with us as some points may be important but without you knowing about it!
The new court procedures and rules
There are new court rules to enable cases to settle or be resolved quickly or be speedier in court all with tight controls on costs. But it places obligations on both parties.
The issue of court proceedings is often seen as a last resort. We cannot engage in deliberate delaying tactics or attitudes such as “see you in court” or “issue claim first and then we will talk”.
The court will be taking an early view of the strength of your case and the proportionality of legal costs incurred compared to the benefit of the potential outcome.
Pre-action protocols require a “cards on the table approach”. Information and evidence must be exchanged early. You are expected to explore every avenue to resolve the case. This includes mediation and negotiation. If you fail in this respect then you may be heavily penalised by the court. If settlement offers (Part 36 offers) Are received, they will require a careful discussion between us.
All of this means “front loading of your case” i.e. early investigation of the facts, analysis of the law and work on documents and instructions of experts. You are responsible for the legal charges for this early work and these costs may be irrecoverable.
The courts and in particular judges will take control of how the case is conducted. They have wide ranging powers and their decisions are thus bound to be unpredictable. Time limits will be enforced rigidly and conduct will be penalised if it is felt to be unreasonable or out of proportion to what is at stake.
Claims for negligence and the rules imposed by the court
The court now encourage the parties to try and resolve any disputes without resort to the court, this is known as the Pre-Action Protocol. The procedure is for the claimant to send a Letter of Claim, which details the breaches and your losses. The relevant professional will have 21 days in which to acknowledge receipt of the letter. After acknowledging the letter they will then have three months in which to investigate. If there is a reasonable request for an extension of this three-month period then this should be agreed. As soon as investigations are complete then the relevant professional will send either a Letter of Response or a Letter of Settlement.