In day to day life in business, and in private, the need arises to employ the services of a professional advisor, be it a surveyor, accountant, architect or, dare I say it, a solicitor.
But what happens when it all goes wrong between you and your professional advisor, and you believe that there has been a mistake?
Most people have heard about, and bandy around the term, ‘professional negligence’ in relation to these claims. However that is not the sole basis of a claim.
It is usual to enter into a written agreement with the professional advisor. This written agreement should contain express terms that govern the advisor’s duties to their client, and their professional liabilities. The contract will ordinarily be in writing and set out the basis upon which the professional acts and the scope of the services that are to be provided.
In addition to the express terms of the contract which may or may not be in writing, terms may be implied into the contract. These may arise through trade custom, course of dealing or by statute.
The terms implied by statute provide the most assistance. There is, implied into the contract, that the service will be carried out with reasonable skill and care. This means that the professional has to exercise reasonable skill in their field of expertise and the client can expect the highest degree of skill and care of a competent professional.
Additionally there may be liability in professional negligence in the advisor performing their duties, even if there is no contract between the parties. However these liabilities can run alongside each other and may be dependent in the circumstances have advantages over the other.
In order to establish a claim in negligence one has to prove the following:
- That the professional owed a duty of care to you in relation to the damage that has been incurred. If you have instructed the professional, that may be easy to evidence. If not then the approach is to start with 3 questions. Was the damage that has been suffered foreseeable? Is there a close or sufficient proximity between the parties? Is it fair, just and reasonable to impose a duty?
- Has there been a breach of the duty of care? Did that standard of work fall below that of the reasonably competent professional? Was the mistake made one that no reasonably competent professional would have made? In order to establish this, expert professional advice in the field is likely to be required to express an opinion on whether the standard of care exercised was in breach of the duty of care.
- Did the breach of duty cause the damage complained of? This is split into 2 elements. Firstly, as a matter of fact, did the breach cause the damage? If the damage would have happened in any event there is no claim. Secondly there is the issue of remoteness of damage. Damage that is reasonably foreseeable will be recoverable from the professional. In contract the test is different. The test is whether the damage arises on the ordinary course of events and is the type that the parties would have had in mind.
Finally once you believe that you have a claim in either contract or negligence you must take action to minimise the loss and must not take unreasonable action to increase the loss.
If you think that you have suffered loss as a result the actions of your professional advisor and wish to have a free no obligation conversation please contact us.