I am often asked about the kind of claims dealt with by the professional negligence team at Mayo Wynne Baxter and the work involved.
In essence it is when a professional, such as a solicitor, barrister, accountant, architect, or surveyor, has made an error, and in particular failed to act suitably for their client, either to a required standard or in accordance with his instructions. You must also show that a loss has been caused and this is usually measured in financial terms. In some countries, including the USA, this is referred to as malpractice claims.
What triggers a professional negligence claim?
In our experience proving that a loss been caused is usually the key focus; in many instances it may not be difficult to prove a significant error though, you have to go further and prove that this error or as we call it, a breach of duty, has actually caused you a loss. For example, in a conveyancing transaction, even if you can show that a professional has made an error or breached duties owed, it might be the case that you would have gone ahead with the transaction or that it as not actually caused any financial losses. And on losses, that might be easy to determine, or you might need the help of experts to determine the amount of losses. For instance, on a conveyance negligence claim, instructing surveyors to work out how much less your property is worth because of the negligence of the professional. You also have to take all steps to minimise your losses.
Examples of losses from professional negligence
So, to give a few examples of the types of actual cases (we have many more!) that we have dealt with in the past few years:
Solicitors.
- (i) Our clients purchased a commercial lease on a property with the proposed use as a gym. This was not allowed under the planning regulations and the solicitors who acted during the purchase failed to check this restriction on use. . Clients therefore entered into a lease which was of no use and prohibited the use of the property as a gym. In the meantime, the clients faced a claim for rent, dilapidations interest and costs by the landlord. We submitted a claim on behalf of our clients and negotiated with landlord for a release of the lease. Negotiations took place with insurers instructed by the solicitors, and we successfully settled the claim to include the claim by the landlord.
- (ii) A claim was made on the purchase of a residential property, where the title deeds do not allow our clients to have the benefit of half of their garden. We pursued the conveyancing solicitors. We assisted the clients to obtain title to the additional piece of land and then successfully settled the claim against the solicitors who acted on the purchase of the property.
Architects.
- The team successfully pursued separate claims against architect relating to (i) the design of a swimming pool and library where the architect failed to supervise the works which were not structurally sound in design and carried out to a poor standard, and (ii) in a claim relating to the defective design, remodelling and building of the client’s home in an exclusive development by the sea.
Surveyors.
- A surveyor’s report was provided to our clients which did not report on evidence of substantial subsidence issues at their property. We dealt with client’s insurers on the subsidence and then a successful claim for losses against the surveyors for failing to spot this evidence.
Accountants.
- We acted for a non-domiciled UK resident, and who had both offshore and on shore assets. The accountants simply did not have the expertise to advise him, and on offsetting his foreign losses against gains. We assisted him in the complicated process of mitigating his losses, including with HMRC and with the help of other experts and accountants. We then successfully concluded the claim against the accountants.
Pre-action steps in professional negligence are key
Court 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.
Finally, time limits may mean that you should not delay. In some instances, for example when complaining about bills, it can be as short as a month. In other cases, the conveyance transaction could have taken place many years ago, so time limits may be approaching. In most cases you have six years within which to lodge court proceedings.