Pursuing a Professional Negligence Claim

Introduction

Individual and corporate clients often consult solicitors because they believe that a professional, for example a surveyor, accountant or other solicitor, has advised them negligently. Often they are disappointed about how complex the system of redress seems to be. Leaving aside any schemes peculiar to a particular profession we do not have a no fault system of negligence claim in Scotland. This briefing attempts to sketch the general background that will operate in many negligence claims.

Was there negligence?

It is important to understand at the outset that it does not follow that just because a professional has made a mistake that the client will be entitled to compensation. Scots Law provides that compensation will be payable by the professional (or often in practical terms their insurer) if the professional has been negligent and as a result of that negligence the client has suffered a loss. Negligence is more than a simple mistake, or something not working out right. For a negligence claim to be successful the client will usually have to prove that the professional deviated so far from the normal advice or actions expected by an ordinarily competent member of their profession (and in a way that no such ordinarily competent professional would have been expected to do). So, for example, if a solicitor advises his client wrongly on some very basic area of law, he may be negligent but if the average lawyer would not have got the question right, he may not be. The way the courts deal with assessing the question of negligence is to hear expert evidence. That means usually the first step for the solicitors advising on a professional negligence claim is obtain an independent expert report from someone else in the profession where the negligence is alleged to have occurred. If a positive report is given that in the expert’s opinion, the professional was negligent, there is then a basis for a claim. The difficulty is of course is where a court is asked to decide between one report saying there is negligence and one report saying there is no negligence. That is one of the issues that make these cases particularly interesting and complex for lawyers and frustrating for clients!

What’s Causation?

The next thing that the legal teams turn to look at is whether the negligence actually caused any loss to clients. The famous case often used as an example of this was the child in the West of Scotland who was overdosed by a doctor negligently with a particular vaccine, and later developed deafness. The child’s claim failed because it could not be proven that the deafness came about because of the negligent act (it could have been a side effect of the drug administered). That may seem a particularly harsh example but the point is very clear; the court will need to be satisfied that the negligence caused the losses complained of. This can obviously be a particularly complex situation where lawyers or accountants or surveyors give advice and as a result it is alleged that there have been significant losses in profits. This usually means that detailed forensic accounting reports are required.

It should also be noted that losses pursued have to be what is known as “reasonably foreseeable” In other words if the professional could not reasonably foresee that his advice would result in the losses the client has suffered, then they will not be recoverable.

Funding Professional Negligence Actions

Professional negligence actions can last a number of years if they are litigated. It is important to note that in some professional negligence actions (for example, medical negligence) cases have to be raised in court (and obviously considerable time is required before the final date to prepare before a case can be lodged) within three years of the negligence occurring. In other cases theoretically the time-bar will be five years, but given the difficulty of preserving evidence as time passes it is imperative that advice is taken as a matter of urgency. Given the complexity and time consuming nature of these litigations they can be expensive. Often in the cases of the biggest professional negligence actions by companies there is obviously no legal aid available, and potentially no before the event insurance in place. In some cases litigation funding will be available, or it may be possible to act on some sort of speculative basis.

We are happy to discuss potential claims (either for pursuer or defender) on an initial no obligation basis.

BBM Solicitors is a boutique law firm offering specialist advice to businesses and individuals throughout Scotland. Contact: Eric Baijal, Head of Litigation: Briefing note is current as at 7 November 2013 and is our understanding of the position described at that date. Legal advice ought to be taken before relying on its terms (particularly to ensure the law has not changed).