insideKENT Magazine Issue 29 - August 2014 | Page 147
LAW
MAKING CLAIMS
AGAINST
PROFESSIONALS
In the sixth of a series of
regular legal articles, Cripps’
specialist professional
negligence team answer some
questions about making a
claim against a professional.
Russell Simpson
I think the advice I received from a professional is wrong.
Do I have a claim?
Yes. If the professional owed you a duty of care, breached that duty and
has caused you harm or loss, there is a potential claim. Often, the most
straightforward element of a potential claim is to establish that the professional
was negligent. However, a potential claimant must also be able to
demonstrate that he or she suffered loss as a result. A professional may
have been negligent, but if this did not cause a loss then there will be no
claim.
Are claims against professionals common?
Yes. Caims made against professionals, including accountants, financial
advisers, solicitors, surveyors and architects, have become more common.
This is principally due to an increasing reliance upon professional advice,
the increased complexity of work carried out, a raised awareness of legal
rights, and recently, the recess ion, which has often made losses suffered
more apparent.
a form of alternative dispute resolution is suitable. This may include
mediation, a settlement meeting, or the commencement of court proceedings.
Are there alternatives to bringing a claim?
Yes. Most professionals have a professional body or an Ombudsman,
which provides a complaints procedure. This can be used after exhausting
the professional’s internal complaints process first, and if a satisfactory
resolution cannot be achieved. However, the forms of redress may be
limited; for example, there may be a cap on the compensation that can be
awarded.
Are there any time limits?
Yes. Court proceedings for professional negligence claims normally have
to be commenced within six years of the negligence, although there are
certain exceptions. Time limits also apply to complaints via an Ombudsman
or professional body. It is vital to seek advice as soon as you are aware of
a possible claim to avoid losing the opportunity to seek redress.
Do I have to be the client?
Often, but not always. The professional must owe you a duty of care. This
will usually be clear when a person has instructed the professional, but in
some circumstances, a professional can owe a duty to a third party. For
example, a solicitor may owe a duty of care to the beneficiaries of a will
that he or she is preparing, or a surveyor may owe a duty of care to a house
buyer, even though the surveyor is instructed by the buyer’s lender.
How do I know if my claim is worth pursuing?
Seek advice. You should have an initial discussion with one of our specialist
solicitors, and if a potential claim exists, we can discuss the options for
investigating that claim and for funding the costs of such investigations.
This includes, where appropriate, using Conditional Fee Agreements,
commonly referred to as 'no win, no fee' agreements.
I am worried about damaging my relationship with the professional.
Professionals will have indemnity insurance to cover claims, and in practice,
these are largely dealt with by the insurers or their solicitors. We aim to
settle claims without the need for court proceedings wherever possible and
most professionals accept that someone who has suffered a loss as a
result of their advice should be compensated.
If you think you may have a claim against a professional, please
contact Cripps' partner, Russell Simpson, on 01732 224050 or
[email protected].
About Cripps
How do I bring a claim?
A claimant should follow the Professional Negligence Pre-action Protocol.
These are guidelines designed to encourage parties to try to resolve the
dispute without the need for court proceedings. The claimant must initially
send a letter of claim providing full details of the allegations of negligence
and the loss suffered. The professional (or their legal representative) must
acknowledge this letter within 21 days and provide a full response within
a further three months.
What if liability is denied?
If the professional denies liability and a settlement offer is not made, then
assuming the claimant wishes to do so, the next step is to consider whether
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This article gives examples and is intended for general guidance only.
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