Professional Negligence solicitors.

If you have suffered negligence from accountants,solicitors or any other professional service understand your rights for compensation.

Professional negligence occurs when a professional fails to perform their responsibilities with the reasonable skill and care expected of a competent practitioner, thereby causing a client or another person to suffer recoverable loss.

Professional negligence solicitors advise individuals, businesses, trustees, beneficiaries, investors and other organisations about claims against professionals whose advice or services are alleged to have fallen below the required standard.

Claims may be brought against:

• solicitors and barristers;
• accountants and auditors;
• surveyors and valuers;
• architects and engineers;
• financial advisers and insurance brokers;
• tax advisers;
• construction professionals;
• estate and managing agents;
• technology consultants;
• planning consultants;
• patent and trade mark advisers; and
• other people or businesses providing specialist professional services.

A disappointing outcome, error or difference of professional opinion does not automatically establish negligence. A claimant must normally prove that the professional owed a relevant duty, breached that duty and caused a measurable loss that the law allows the claimant to recover.

This guide principally covers professional negligence claims in England and Wales. Different legal procedures apply in Scotland and Northern Ireland.

Do You Have a Professional Negligence Claim?

A successful professional negligence claim will commonly require proof of four connected elements:

• the professional owed the claimant a contractual, tortious, fiduciary or other legal duty;
• the professional breached the applicable standard of care or another relevant obligation;
• the breach caused the claimant's loss; and
• the loss is legally recoverable and can be supported by evidence.

Each element must be considered separately. Establishing that a mistake was made does not necessarily prove that the mistake caused a financial loss.

Duty of Care

When Does a Professional Owe a Duty?

A professional will usually owe contractual duties to the client who instructed them. The contract may be contained in:

• a signed engagement letter;
• terms of business;
• emails or correspondence;
• an oral agreement;
• a course of dealing; or
• a combination of documents and conduct.

The contract will help define the scope of the professional's work. It may identify what the professional agreed to do, what they were not instructed to do, the information they were entitled to rely upon and any limitations on their responsibility.

A professional may also owe a duty in negligence independently of the contract. The existence and scope of that duty will depend on matters such as the relationship between the parties, the purpose for which the advice was given and whether it was reasonable for the claimant to rely upon it.

Claims by People Who Were Not the Client

In some circumstances, a professional may owe duties to somebody who did not directly instruct or pay them.

A frequently cited example concerns a solicitor who negligently prepares or fails to complete a will, causing an intended beneficiary to lose an inheritance. Although the beneficiary was not the solicitor's client, the law may permit a claim where the solicitor assumed responsibility for carrying out the testator's instructions and the intended beneficiary suffered the resulting loss.

Other third-party claims may involve:

• lenders relying on valuation reports;
• investors relying on professional statements;
• beneficiaries affected by trust or estate advice;
• purchasers relying on certificates or reports;
• companies affected by advice given to directors; and
• identified third parties for whose benefit professional work was undertaken.

Third-party claims are legally sensitive. A professional does not owe an unlimited duty to every person who may foreseeably read or be affected by their work.

Scope of the Duty

It is not enough to establish that a professional owed a duty. The claimant must show that the loss falls within the scope of the duty breached.

For example, a solicitor instructed solely to complete a transfer of property may not be responsible for advising on every commercial risk associated with the transaction. Conversely, a professional may be expected to warn about an obvious and serious risk that falls within the purpose of the instruction, even if the client did not ask a precisely worded question about it.

The engagement documents, discussions, professional standards, and circumstances of the instruction will all be relevant.

Breach of Duty

The Standard of a Reasonably Competent Professional

A professional is normally required to exercise the reasonable skill and care expected of a reasonably competent practitioner in the relevant field.

The question is not whether the professional achieved the best possible result or whether another professional would have acted differently. The court considers whether the conduct fell outside the range of approaches that a reasonably competent professional could properly have adopted.

A breach may involve:

• giving incorrect advice;
• failing to identify a material risk;
• missing a legal or contractual deadline;
• failing to follow clear instructions;
• failing to obtain relevant information;
• using an incorrect method or calculation;
• failing to advise about available options;
• preparing defective documents;
• failing to comply with professional standards;
• failing to refer work outside the professional’s expertise; or
• failing to act within a reasonable time.

A Range of Professional Opinions May Be Acceptable

Many professional decisions involve judgment rather than a single objectively correct answer. The law may recognise a reasonable range within which a competent professional could have acted.

For example, a property valuation is an expert opinion rather than an exact mathematical fact. A valuer will not normally be negligent merely because the court later concludes that the property was worth a different amount. The claimant must usually establish that the valuation fell outside the permissible margin or range for a reasonably competent valuer.

Similar issues may arise in relation to investment advice, litigation strategy, architectural design, tax planning and other matters involving professional judgment.

Expert Evidence

Expert evidence is often required to establish the standard reasonably expected of the professional and whether that standard was breached.

The expert should normally practise in the same or a closely related field and understand the standards operating at the relevant time. The expert's overriding duty is to assist the court rather than advocate for the party instructing them.

Expert evidence may not be required where the error is obvious, such as missing an undisputed limitation deadline. However, expert evidence should not be rejected merely because the claimant believes the mistake is clear.

Causation

Causation concerns whether the professional's breach actually caused the loss claimed.

The court will often compare:

• what actually happened; and
• what would probably have happened if the professional had performed their duties correctly.

This hypothetical alternative is sometimes called the counterfactual.

A claimant may establish a breach but still lose the case if the same financial outcome would probably have occurred in any event.

Examples of Causation Issues

Causation disputes may include questions such as:

• would a claimant have entered into the transaction after receiving correct advice;
• would properly conducted litigation have succeeded;
• would a competent valuation have changed the lender's decision;
• would a tax liability have arisen regardless of the advice;
• would a planning application have been refused in any event;
• would the client have followed the advice if it had been given; and
• did a later event break the connection between the professional's mistake and the loss?

Loss-of-Chance Claims

Some claims concern the loss of an opportunity rather than a result that can be proved with certainty.

For example, a solicitor may negligently allow a legal claim to become time-barred. The claimant may then need to prove that the original claim had a real and substantial prospect of success and establish the value of the lost opportunity.

The court may reduce the award to reflect the uncertainty as to whether the underlying claim or transaction would have succeeded.

Proving Financial Loss

The usual objective of damages is to place the claimant, so far as money can, in the position they would have occupied if the professional had performed their duties properly.

Recoverable loss may include:

• money paid unnecessarily;
• loss in the value of property or an investment;
• the cost of correcting defective work;
• additional tax, interest or penalties;
• lost profit or business opportunity;
• the value of a lost legal claim;
• additional professional expenses;
• liabilities incurred because of the negligence; and
• other consequential losses within the scope of the duty.

The claimant must prove the loss with sufficient evidence. Unsupported estimates or speculative projections may not be recoverable.

Pure Distress and Inconvenience

Professional negligence claims are usually concerned with financial loss. Damages for distress, anxiety or inconvenience are more restricted and will depend on the nature and purpose of the professional's contract and the circumstances of the case.

A complaints body may have wider powers to award modest compensation for poor service, inconvenience or distress than a court applying the law of negligence.

Betterment

A claimant should not generally be placed in a better position than they would have occupied had the professional acted properly.

If remedial work gives the claimant a new or more valuable asset than the one they should originally have received, an adjustment may sometimes be made for that benefit.

Mitigating Your Loss

A claimant has a duty to take reasonable steps to reduce avoidable loss after discovering the problem.

This may involve:

• obtaining corrective professional advice;
• appealing or correcting a defective decision;
• repairing urgent damage;
• pursuing an available underlying claim;
• terminating a loss-making arrangement;
• securing replacement finance;
• notifying insurers; or
• protecting property or documents.

A claimant does not have to take unreasonable risks or spend unlimited sums. The test is whether the response was reasonable in the circumstances.

Where a claimant unreasonably allows the loss to increase, the additional loss may not be recoverable.

Reasonable Attempts That Do Not Succeed

The fact that a reasonable attempt to limit the loss was unsuccessful does not necessarily prevent recovery. The decision is judged in light of the information available at the time, rather than entirely in hindsight.

Contributory Negligence

Damages may be reduced where the claimant's own unreasonable conduct contributed to the loss.

Examples may include:

• providing incomplete or inaccurate information;
• ignoring clear professional advice;
• failing to read or respond to important correspondence;
• delaying after becoming aware of the problem;
• proceeding with an obvious risk; or
• failing to take reasonable protective action.

A professional cannot automatically avoid liability by arguing that the client should have identified the very error the professional was retained to prevent. The degree of responsibility will depend on the facts and the purpose of the engagement.

Contractual Limitations and Exclusions

Engagement terms may seek to:

• limit the professional's financial liability;
• exclude responsibility for specified matters;
• define who may rely on the work;
• restrict claims to a particular period;
• exclude certain types of loss; or
• require disputes to be resolved through arbitration or another procedure.

Whether a clause is effective will depend on its wording, how it was incorporated into the contract and whether statutory controls on unfair or unreasonable terms apply.

A limitation clause should therefore be reviewed rather than assumed to prevent a claim.

Common Types of Professional Negligence Claim

Claims Against Solicitors

Solicitors’ negligence claims may concern:

• missing a court or limitation deadline;
• under-settling litigation;
• failing to advise on litigation risk or costs;
• incorrectly drafting a will or trust;
• errors in estate administration;
• defective conveyancing work;
• failure to identify title restrictions;
• incorrect tax advice;
• failure to secure or register rights;
• conflicts of interest;
• breach of confidentiality; and
• failure to follow instructions.

Professional negligence should be distinguished from a complaint about poor service. Delay, inadequate communication or an excessive bill may justify a complaint even where no financial negligence claim exists.

Claims Against Surveyors and Valuers

Claims against surveyors may involve:

• failing to identify significant defects;
• inaccurate property valuations;
• incorrect boundary advice;
• failure to report structural movement;
• defective schedules of condition;
• incorrect measurement;
• negligent project monitoring;
• errors in lease or rent-review advice; and
• failure to advise that specialist investigation was needed.

The type and scope of the survey are important. A limited valuation for mortgage purposes does not provide the same inspection or protection as a comprehensive building survey.

Claims Against Architects and Engineers

Claims may involve:

• defective or unsafe design;
• failure to comply with planning or building requirements;
• inadequate inspection of construction work;
• failure to administer the building contract properly;
• incorrect certification of payments or completion;
• cost overruns;
• delay;
• failure to coordinate consultants; and
• specifying unsuitable materials or construction methods.

Claims against construction professionals may fall within the separate Pre-Action Protocol for Construction and Engineering Disputes rather than the general Professional Negligence Protocol.

Claims Against Accountants and Tax Advisers

Accountancy and tax claims may concern:

• incorrect tax advice;
• missed filing or election deadlines;
• failure to identify tax liabilities;
• negligent audits;
• incorrect accounts;
• business valuation errors;
• failure to detect irregularities;
• unsuitable corporate structures; and
• penalties or interest caused by professional error.

A claimant cannot necessarily recover tax that would lawfully have been payable even with competent advice. The recoverable loss may instead concern avoidable additional tax, penalties, interest or the loss of an available planning opportunity.

Claims Against Financial Advisers

Claims involving financial advisers may concern:

• unsuitable investment recommendations;
• failure to assess risk and capacity for loss;
• pension transfer advice;
• failure to diversify investments;
• misleading information about charges or guarantees;
• failure to review investments where an ongoing service was agreed;
• unsuitable tax-planning products; and
• failure to explain material risks.

Some complaints can be considered by the Financial Ombudsman Service as an alternative to court proceedings.

Claims Against Insurance Brokers

An insurance broker may face a claim for:

• failing to arrange the requested cover;
• obtaining inadequate policy limits;
• failing to explain exclusions or conditions;
• failing to disclose material information to an insurer;
• allowing cover to lapse;
• placing cover with an unsuitable insurer; or
• failing to notify a claim properly.

The claimant will normally need to establish what cover a competent broker would have obtained and whether the insurer would have paid the underlying claim.

Claims Against Estate or Managing Agents

Claims may arise from:

• incorrect property particulars;
• failure to follow instructions;
• mismanagement of client money;
• negligent tenant referencing;
• failure to deal with repairs or safety issues;
• breach of fiduciary duty;
• failure to collect or account for rent; and
• undisclosed conflicts or commissions.

Claims Against Technology Professionals

Technology-related claims may involve:

• defective software development;
• failed data migration;
• inadequate cybersecurity advice;
• system implementation failures;
• loss or corruption of data;
• failure to meet agreed specifications;
• incorrect technical advice; and
• failure to provide suitable disaster-recovery arrangements.

The contract, technical specification, acceptance criteria and allocation of responsibility between suppliers are often central to these disputes.

Time Limits for Professional Negligence Claims

Strict limitation periods apply. A claim brought after the relevant period has expired may be dismissed, even where the professional was negligent.

The Primary Six-Year Period

A claim for breach of a simple contract will commonly need to be brought within six years of the breach.

A negligence claim will also commonly be subject to six years, generally running from the date on which actionable damage occurred. The contractual and negligence periods may begin on different dates.

Latent Damage and Date of Knowledge

Where the relevant facts were not known when the negligence claim first arose, section 14A of the Limitation Act 1980 may provide an alternative period of three years from the date on which the claimant had the knowledge required to bring the claim and the right to bring it.

This is not a general extension whenever the claimant first appreciates the problem's full legal significance. Disputes frequently arise over when the claimant knew enough about the material facts.

The Fifteen-Year Longstop

Negligence claims falling within section 14A are generally subject to an overriding longstop of 15 years from the defendant's relevant act or omission. This may prevent a claim even where the loss was discovered much later.

Other Limitation Rules

Different periods or rules may apply where:

• the agreement was executed as a deed;
• fraud, deliberate concealment or mistake is alleged;
• the claimant lacked capacity;
• the professional owed continuing duties;
• the claim involves contribution between defendants; or
• specialist statutory rights are relied upon.

Complaining to a professional, an insurer, a regulator, or an ombudsman does not ordinarily stop the court limitation period. Negotiations also do not usually stop time from running.

Where limitation is approaching, it may be necessary to issue protective proceedings or enter into a written standstill agreement.

The Professional Negligence Pre-Action Protocol

Most professional negligence claims, other than those governed by a more specific procedure, should follow the Pre-Action Protocol for Professional Negligence before issuing court proceedings.

The protocol is intended to:

• allow the parties to exchange information;
• identify the legal and factual issues;
• encourage early investigation;
• promote settlement;
• consider alternative dispute resolution; and
• support efficient court proceedings where settlement is not possible.

Preliminary Notice

A claimant may send a preliminary notice to the professional as soon as there is a reasonable chance that a claim will be made.

The notice should normally identify the claimant, provide a brief outline of the grievance, and, where possible, indicate the financial value.

Letter of Claim

Once the claim has been investigated, the claimant will normally send a detailed letter of claim.

It should explain:

• the factual background;
• the scope of the professional’s duties;
• the alleged errors or breaches;
• how the breaches caused loss;
• the financial loss and method of calculation;
• the documents relied upon;
• any expert evidence obtained;
• whether another party may be responsible; and
• proposals for resolving the dispute.

The Professional's Response

The professional should acknowledge receipt of the letter and investigate the claim, typically with their professional indemnity insurer and legal advisers.

A detailed response should state which parts of the claim are admitted or denied, explain the professional's case and address causation and loss. The response may include a settlement proposal.

Protocol Timescales

The protocol ordinarily allows the professional three months from acknowledgement of the letter of claim to investigate and provide a reasoned response.

The parties may agree on an extension where reasonably required, but they should remain conscious of the limitation period.

Failure to Follow the Protocol

The court may take non-compliance into account when managing proceedings and deciding costs and interest.

The protocol should not be used tactically to cause unnecessary expense or delay. The steps taken should remain proportionate to the value and complexity of the dispute.

Obtaining the Professional's File

The professional's file may contain important evidence, including:

• the engagement letter;
• attendance notes;
• emails and correspondence;
• draft documents;
• internal memoranda;
• reports and calculations;
• instructions from the client;
• advice given;
• documents provided by third parties; and
• records of decisions and warnings.

Ownership and disclosure of individual documents can be complicated. Some parts of a file may belong to the client, while others may belong to the professional or be subject to confidentiality, privilege or third-party rights.

A solicitor can request relevant documents and, where necessary, seek disclosure through the pre-action process or court proceedings.

Professional Indemnity Insurance

Many regulated professionals are required or expected to maintain professional indemnity insurance.

The professional should normally notify their insurer promptly after receiving notice of circumstances that may lead to a claim. The insurer may appoint solicitors and take responsibility for investigating and defending the matter.

The existence of insurance does not prove negligence and does not guarantee that every loss will be covered. Policy limits, exclusions, deductibles and aggregation provisions may affect the available indemnity.

Settlement and Alternative Dispute Resolution

Professional negligence claims are frequently resolved without a trial.

Possible methods include:

• without-prejudice negotiation;
• mediation;
• early neutral evaluation;
• expert determination;
• arbitration; and
• formal settlement offers under Part 36 of the Civil Procedure Rules.

Mediation

Mediation allows an independent mediator to help the parties negotiate a settlement. The mediator does not normally decide the case.

A settlement can address matters beyond an award of damages, including:

• corrective work;
• release from unpaid fees;
• confidentiality;
• an agreed statement or apology;
• payment by instalments;
• contribution from several parties; and
• continuing commercial relationships.

An unreasonable refusal to consider alternative dispute resolution may affect the court's decision about costs.

Court Proceedings

If the claim cannot be resolved, the claimant may issue civil proceedings.

The court will manage the claim by giving directions dealing with:

• statements of case;
• disclosure of documents;
• witness statements;
• expert evidence;
• costs and budgets;
• settlement;
• interim applications; and
• trial preparation.

The appropriate court track will depend on value and complexity. Claims worth no more than £10,000 may be allocated to the small claims track. However, professional negligence cases can be unsuitable for that track where they require complex evidence or expert opinion.

Suitable claims between £10,000 and £25,000 may proceed on the fast track. Less complex claims up to £100,000 may proceed on the intermediate track, while higher-value or more complex cases are generally dealt with on the multi-track.

Legal Costs and Costs Risk

Professional negligence claims can be expensive because they may require detailed document review, specialist legal analysis and expert evidence.

Before proceeding, the claimant should understand:

• their own solicitor’s estimated costs;
• the cost of expert reports;
• court fees;
• the risk of paying the defendant’s costs;
• the extent to which costs may be recovered if successful;
• whether fixed recoverable costs apply;
• the effect of settlement offers; and
• whether the defendant has insurance or assets.

Outside the small claims track, the unsuccessful party will commonly be ordered to pay a proportion of the successful party's reasonable costs. A costs order does not normally reimburse every pound spent.

In some cases, legal expenditure can approach or exceed the amount in dispute. The likely recovery and commercial benefit should be reviewed throughout the case.

Funding a Professional Negligence Claim

Funding arrangements may include:

• payment at hourly rates;
• fixed fees for defined stages;
• staged or capped fees;
• a conditional fee agreement, sometimes called a no-win, no-fee agreement;
• a damages-based agreement;
• legal expenses insurance;
• after-the-event insurance;
• third-party litigation funding; or
• funding through a business, trade body or membership organisation.

No-win, no-fee funding is not available for every claim. A solicitor will consider the prospects of success, likely value, enforceability and proportionality of the costs.

Existing Legal Expenses Insurance

Legal expenses cover may be included in:

• home insurance;
• business insurance;
• professional policies;
• motor insurance;
• bank-account packages; or
• membership benefits.

The insurer should be notified promptly because policy conditions and time limits may apply.

Complaints and Regulatory Action

A professional negligence claim and a complaint are not the same process.

A civil claim seeks compensation or another legal remedy for loss caused by a breach of duty. A complaint may address poor service, delays, communication, fees, or professional conduct, even where no recoverable financial negligence claim exists.

Regulators generally deal with professional standards and disciplinary matters. They do not always have the power to award compensation for the claimant's full financial loss.

Complaints About Solicitors

A client should normally complain to the solicitor or law firm first. The firm generally has up to eight weeks to provide its response.

An eligible complainant may then refer a service complaint to the Legal Ombudsman. Under the current rules, the complaint should normally be referred:

• within six months of the firm's final response;
• within one year of the act or omission complained about; or
• within one year of when the complainant should reasonably have known there was cause for complaint.

Exceptions may apply, but they should not be relied upon without advice.

Concerns about serious misconduct may also be reported to the relevant professional regulator. The regulator's role differs from that of the Legal Ombudsman and the civil courts.

Complaints About Financial Businesses

A complaint about a regulated financial adviser, insurer or other financial business should normally be made to the business first. It generally has up to eight weeks to issue a final response.

An eligible complainant may then refer the matter to the Financial Ombudsman Service, usually within six months of the final response. Separate rules govern the period within which the original complaint must be filed.

The Financial Ombudsman applies a fair-and-reasonable test and may provide a more accessible route than court proceedings. However, jurisdictional and compensation limits apply.

Other Complaints Bodies

Depending on the profession, complaints may be considered by:

• a professional regulator;
• an ombudsman;
• a professional membership body;
• an approved redress scheme;
• an arbitration or adjudication service; or
• the professional's own internal complaints procedure.

A complaints process may have a shorter deadline than a civil claim. Conversely, pursuing a complaint generally does not extend the court's limitation period.

Claims Involving More Than One Professional

A loss may result from the combined acts of several professionals, contractors or advisers.

For example, a construction dispute may involve allegations against an architect, engineer, surveyor, contractor and solicitor. A failed transaction may involve a solicitor, an accountant, a valuer, and a financial adviser.

The claimant should identify all potentially responsible parties before the limitation expires. Defendants may seek contributions from each other under statutory or contractual rights.

A settlement with one party should be drafted carefully to avoid unintentionally releasing another responsible party or reducing the remaining claim unexpectedly.

Defending a Professional Negligence Claim

Professionals and their insurers may dispute:

• the scope of the retainer;
• whether a duty was owed;
• whether the standard of care was breached;
• whether expert evidence supports the allegation;
• whether the claimant would have acted differently;
• whether any breach caused the loss;
• the amount or foreseeability of the loss;
• whether the claimant mitigated the loss;
• contributory negligence;
• limitation;
• the effect of contractual exclusions or caps; and
• whether another party caused or contributed to the damage.

A professional receiving a complaint or claim should preserve the file, avoid altering records, notify their insurer and obtain advice before making admissions.

Evidence to Preserve

A person considering a professional negligence claim should retain:

• engagement letters and terms of business;
• contracts and instructions;
• emails, letters and messages;
• reports, plans and valuations;
• invoices and payment records;
• meeting notes;
• photographs;
• court or transaction documents;
• evidence of the loss;
• documents showing attempts to limit the loss; and
• the professional’s final complaint response.

Documents should not be edited, destroyed or recreated. Electronic records and metadata may be important.

How a Professional Negligence Solicitor Can Help

A specialist solicitor may assist with:

• assessing whether a duty was owed;
• reviewing the professional’s file;
• identifying the applicable standard of care;
• obtaining preliminary expert advice;
• analysing causation and loss;
• checking limitation periods;
• sending preliminary notices and letters of claim;
• dealing with professional indemnity insurers;
• responding to allegations on behalf of professionals;
• negotiation and mediation;
• court proceedings;
• Part 36 settlement offers;
• claims involving several defendants;
• enforcement of settlements and judgments; and
• complaints to ombudsmen and professional bodies.

Finding a Professional Negligence Solicitor

Professional negligence claims can involve complex questions about the scope of an instruction, acceptable professional judgment, causation, expert evidence and limitation.

Do not delay in seeking advice. A complaint, negotiation or ombudsman referral will not necessarily stop the time limit for issuing court proceedings.

Use the search facility at the top of this page to find a professional negligence solicitor who can assess the evidence, explain the likely costs and advise on the most appropriate route.

This guide provides general information about professional negligence law in England and Wales. It does not constitute legal advice and should not be relied upon as a substitute for advice about a particular professional, service or loss.