Should I be afraid to challenge?
No, you are paying for a service, and you are entitled to be happy with it. If it turns out there is nothing in your suspicion, you can clear the air and rebuild your trust in the adviser, if it proves that there is a problem, you can assess how to deal with it. Positive results can come from informal or formal complaints or even mediation. Challenges do not have to be adversarial and often the relationship is not irreparably damaged.
What factors will be considered for a claim?
In law, you must establish:
- A duty owed;
- A breach of that duty; and
- 3. Loss caused by that breach.
A frequent stumbling block is proving that the professional’s act or omission caused the loss suffered. Most commonly a professional adviser may incur liability for breach of contract and/or beach of a duty of care owed in the tort of negligence. Less commonly, liability can arise from breach of fiduciary duty or breach of statutory duty
What has been agreed?
An important starting point is to establish what was agreed. It does not need to be in writing, as in some cases only some of the contract was written down.
Has the professional carried out their engagement properly, or at all?
Under section 13 of the Supply of Goods and Services Act (1982), a professional acting in the course of business will be obliged to carry out the service “with reasonable care and skill”. This duty may be limited by contract, subject to the Unfair Contract Terms Act (1977) and any applicable professional rules. Interestingly, level of experience is not relevant to the standard of care which is imposed, although a special skill can raise the expected standard of care.
What is the time limit I have to make a claim?
This is called the limitation period, and checking this should be done as soon as possible as often the results of professional negligence do not reveal themselves for some time. You will need to establish whether there is a cause of action in contract or tort, as the time limits can differ for each.
What damages can I recover?
In contract, damages seek to put the injured party in the position he would have been in if the contract had been properly performed. So for example the innocent party can seek to recover expected profits. In tort, the injured party is to be put in the position he was in before the tort was committed, which will not include expected profits.
How do I asses the size of the claim?
That the professional’s error caused the loss must be established in fact and in law. In contract a claimant can recover losses arising naturally from the breach or loss which was considered by the parties at the time the contract was made. In tort, the type of damage suffered must have been reasonably foreseeable at the time of the breach of duty. Many claims against professional advisers involve a claim for a loss of a chance. You cannot recover damages for losses which could have been avoided by taking reasonable steps in mitigation.
What if I’m still not happy?
Having established y our position, you may be content to address any issues direct with your adviser or via their regulator. You could try agreeing a financial settlement to compensate for your loss. Your professional advisers might still be keen to continue working with you, and this could be a good opportunity to refresh your relationship, perhaps through mediation. On the other hand, you might think it is time to terminate your relationship with your professional adviser, and consider taking legal advice about making a formal claim against them
Sue O’Brien is a partner at Pitmans law firm. She has extensive experience in resolving professional liability issues by negotiation, mediation, and proceedings where necessary.
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