Professional Negligence claims are on the rise, suggesting that either malpractice is becoming more widespread or society is becoming more litigious, says Paul Wershof, a consultant at local solicitors Wiseman Lee.
The prospect of facing a claim for negligence affects every professional and thus has the effect of acting as a deterrent against poor practice.
In English law, professional negligence is a part of the general rules on negligence to cover the situation in which the defendant has represented him or herself as having more than average skills and abilities; in other words, a professional person. This might include healthcare workers, solicitors, surveyors, financial advisors, architects, accountants and professional trustees.
As in claims for personal injury or clinical negligence, a successful claimant needs to show three things: firstly, that the claimant was owed a duty of care by the defendant professional; secondly, that the professional breached the duty of care; and thirdly, that the breach caused a loss to the claimant.
We had a recent case where two clients brought in mirror Wills that had been prepared by a Will-writing company. They complained that the wills did not reflect what they actually wanted. During the process of producing the Wills, which was largely carried out online, they did not have the opportunity of asking questions – they were only required to answer them. There was no loss to the client, apart from the modest sum they paid for the Wills in the first place, but the loss would have been considerable had one of them died before our intervention.
The under-settling of personal injury claims for the benefit of the solicitor rather than their client has been a known problem for some time, but more pernicious and even more difficult to rectify is the under-assessment of a claim. One of the more complex cases we dealt with recently was where a client was attempting to claim against a solicitor who had agreed a full and final settlement of her original claim for medical negligence without taking into account the costs of her long-term care. The fundamental principle of negligence law is to put the claimant back in the position they would have been in had the negligence not occurred – in this case, a position where the solicitors made a full and accurate assessment of the damages available. Therefore, a care bill that should have been paid by the defendant may ultimately become the responsibility of the negligent solicitor, if it can be shown that this loss would have been claimed successfully.
Simply showing that a solicitor was negligent is not enough; you still need to show the merits of the original claim. This ‘case-within-a-case’ aspect means that professional negligence claims require great expertise – the burden of showing that the underlying claim would have succeeded is a heavy one. Professional negligence claims also tend to be vigorously defended, not least because defendants are often backed by insurance companies with deep pockets, so instructing a tenacious solicitor with a history of success in the field is essential.
Ultimately, and although it may seem counter-intuitive, the rise in claims for professional negligence may help in assisting solicitors and other professionals to put their houses in order.
For further information on professional negligence claims please contact our team
This article was originally published in the Wanstead Village Directory.