How does this happen?
When an individual joins a professional body, they’re often made to take out Professional Indemnity Insurance (PII): a policy that protects them from paying compensation for negligence claims. For example, when a doctor fails to meet the necessary standards expected of their profession, or an accountant provides you with inadequately researched financial advice, they might find themselves at the centre of a professional negligence case. In these scenarios, their insurance company will pay any costs in the event of successful litigation against them.
Naturally, insurance companies are reluctant to pay compensation, and are more than willing to flex their financial muscles to ensure your claim never makes it to court. Often, they’ll succeed – not because they’re right, or because they have a better chance of winning on the merits of your claim, but because SME owners don’t understand the options available to them, and believe themselves to have no serious chance of funding their case all the way to court.
What options are available to small business litigants?
This isn’t true, of course – but the traditional options available to SMEs can be very discouraging. Employing a lawyer on an hourly retainer can put significant pressure on your finances, and if you lose, you may pay both these fees and your opponents’ legal costs. Even so-called “no win, no fee” arrangements don’t take every legal cost into account.
This can be particularly important when it comes to fighting negligence claims. These frequently rest on expert evidence to explain the opponent’s shortcomings: only another surveyor is really in a position to assert that your advisor failed to live up to professional standards. Unsurprisingly, professional experts expect to be paid for their help, yet this isn’t covered by “no win, no fee” arrangements.
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An insurance company is often better funded and better informed than any individual SME owner. In many cases, they can try to simply draw a case out to the point where it seems just too expensive and time-consuming for the small business to pursue.
Empowering SME claimants
“Seems” is the operative word: with the right funding model, and the right backing, SMEs can take their case to court – and win. Professional litigation funders can provide both, so that you’ll actually be able to get your negligence claim before a judge – or ideally settle much sooner than that.
For a portion of any damages you receive, a litigation funder will bear all financial responsibility for your case. Solicitor costs, expert witnesses, court fees: they’ll handle it all. If you lose, you don’t have to pay anything either. With this support, a good case will always get the hearing it deserves, although naturally businesses looking for funding should always seek professional guidance: there are a range of issues to consider such as the financial strength of the funder, the nature of the funding agreement, and the consequences of any major changes in your case.
One of the additional benefits of funding is that insurance companies are not stupid: if they sense that they’ve got more to lose by turning your case into a protracted affair, they’ll usually attempt to settle. It’s kind of satisfying, in its way, when this does happen: you may not have wanted this particular fight, but by bringing the biggest army you can force a quick victory.
Litigation is seldom a simple thing, and when your livelihood is imperilled by someone else’s failings, it’s easy to be overwhelmed by emotion. But if you’re going to pursue justice for your negligence claim, it’s worth thinking through your approach. To emerge victorious, you’ll need a strategy – and a funding model – that minimises your losses and maximises your eventual returns.
Mark Beaumont is co-director at Annecto Legal.
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