Professional Negligence
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Professional Negligence
Apart from handling ordinary claims for negligence, we at GSC are often consulted regarding alleged failures by professionals, such as solicitors, accountants, surveyors and architects. Usually any such claim involves the professional’s insurers who appoint one of their panel of solicitors within their vast team of lawyers and what may appear to be unlimited resource.
This area of the law is governed by a special protocol which requires many steps to be taken before court proceedings can be commenced. The protocol’s aim is to get both sides of the dispute to set out their respective position with some clarity and supported (if appropriate) by expert evidence. The parties are then encouraged to resolve the matter without troubling the Court. In practice (and we accept some may think as cynical) insurance companies often like to use the Protocol to delay matters for as long as possible.
The Court’s attitude to professional negligence claims can vary depending upon financial and social market conditions. For example, in a surveyor’s valuation negligence claims, the Court has repeatedly rejected any attempt to claim against the drop-in value of a property interest due to a fall in the property market, even though the negligent valuation took place in a different market and the purchaser has missed out.
The first point to consider in a potential claim against a professional is to establish the precise ambit of the professional’s retainer. For example, if legal advice is sought on a transaction, a lawyer may try to exclude the tax ramifications of the transaction. However in 2017 the Court of Appeal decided that a solicitor has a duty to notify his client that whilst he took one view as to the validity of the tax scheme, it was possible that the Revenue might take a different view and a failure to so explain was negligent. In reality the Court will expect a client to be told of the risks in the transactions and the options open to him so the client can form a view and whether to take the risk.
It is to be noted that the fact that something goes wrong does not mean the professional is automatically liable. The test is what a competent professional would have done in the circumstances of the case and that can require expert evidence to be produced.
There are lawyers who are not happy to sue other lawyers but at GSC we don’t have such qualms. If we consider another professional has not given advice to a competent standard we will advise our clients pursue a claim. We have found that in most cases the insurance company will eventually make an offer provided sufficient pressure is brought upon them or they are faced by trial unless for the insurance company the case raises a matter of principle upon which it considers people would be helped by a Court judgement.
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