Posted by Mark Hambleton, Partner
Understanding your Professional Negligence Claim
Often clients are confused about their professional negligence claim. Hopefully this blog will shed some light on the 3 most common areas of confusion.
The purpose of this blog is to identify and explain the 3 most common areas of confusion for clients pursuing a professional negligence claim. For the purpose of this example I will be referring to a professional negligence claim against a firm of solicitors where the client is unhappy with the settlement of his/her personal injury claim.
The points for consideration are:
- Was there a breach of duty by the personal injury solicitor?
- Did the breach cause or materially contribute to a quantifiable loss?
- If 1 and 2 are established how are damages assessed?
Was there a breach of duty by the personal injury solicitor?
The solicitor in the original personal injury matter owed his/her injured client a duty to use reasonable care and skill.
In determining whether the personal injury solicitor was negligent he/she should be judged by the actions of a reasonably competent practitioner having regard to the standards normally adopted in the profession.
Merely being wrong does not necessarily constitute negligence. It is unlikely that the personal injury solicitor will be negligent if he/she has acted in a particular way which is supported by a respectable body of professional opinion. This is the case even if it later transpires that the correct approach would have been to take an alternative course of action.
A personal injury solicitor exercises professional judgement throughout the life of a claim. For that solicitor to be negligent it must be shown that no reasonably competent practitioner in his position would have given that advice e.g. settlement advice on the value of the claim (or whatever the advice complained of).
Did the breach cause or materially contribute to a quantifiable loss?
If it is established that the personal injury solicitor in the original action breached the duty to exercise his or her reasonable care and skill during the claim then it does not necessarily follow that the injured person will be entitled to damages as a result of the breach.
The injured person must prove they have lost something of value. For example, if the personal injury solicitor breached the duty owed to the client but still achieved the settlement that would have been reached notwithstanding the breach then a professional negligence claim would fail as the negligence did not cause a loss.
Where there is a complaint (but no quantifiable loss) it is a good idea to speak to the Legal Ombudsman for advice.
If 1 and 2 are established – how are damages assessed?
It is not the purpose of a professional negligence action to re-litigate the original claim. The professional negligence solicitor will be valuing the chance that has been lost in the original litigation.
For example, if the full value of the original personal injury action was £100,000 but the prospects of succeeding with that claim were 40% then the recovery of damages in a professional negligence claim would be £40,000 plus costs.
It can be seen from this example that it will be much easier for your professional negligence solicitor to obtain the full amount of your likely damages absent the negligent advice in a case where liability is admitted and the prospects of succeeding were therefore 100% (assuming there were no difficulties establishing the causative link between the accident and your injuries).
If you believe you have a professional negligence claim against your previous personal injury solicitor or if you are unhappy with the solicitor handling your professional negligence claim then please feel free to contact us for a free of charge assessment as we would be happy to investigate bringing a new claim or taking over the conduct of an existing claim on your behalf.