A professional providing services to any client is obligated to do so with reasonable care and skill.  The obligations of a professional are implied into any contract or retainer terms.  A civil action arises in Contract and in the law of Tort.

 

Civil Action in Contract  - the scope of the professional's duty of care is determined by the terms and what is intended to be provided under the retainer, together with the client's instructions and the relevant professional regulatory and legal context. 

 

Civil action in Tort - the performance of the duty of care is usually judged by reference to 'the standard of the ordinary skilled man exercising and professing to have that special skill'. This was established in a case called Bolam. In some cases, the court will depart from that standard if it imposes unacceptable risk or is illogical.

 

The issue of the professional's liability for negligence may be determined by reference to the quality of risk advice given by the professional, whether the client was properly informed of material risks.  A professional could also be liable for negligence if despite being correct about a matter of interpretation if the court considers that they should have warned the client that others could take a different view.

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The role of professional regulation may also be significant in some circumstances, such as codes of conduct which if breached giving rise to professional liability.

 

Most regulatory schemes provide a framework for client complaints, redress and compensation that exists alongside the court jurisdiction.

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In addition to a failure to discharge the duty of care, a professional may also be found liable on other grounds (e.g., for breach of warranty of authority, for breach of trust when safeguarding client funds, and for breach of fiduciary obligations of loyalty and of acting in good faith in the best interests of the client). 

 

The limitation period which is the time by which a claim should be brought in professional negligence disputes is the six-year period for causes of action in Contract and Tort. The six-year period starts on the date that the cause of action accrues. In contract, it is usually quite straightforward to establish the date of the accrual; it will be when the defendant's breach of contract occurs irrespective of when damage is sustained. In tort, the cause of action accrues upon the claimant sustaining actionable damage. This is often later than the date on which the breach of contract occurs.

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Prior to commencing proceedings, parties are expected to have adhered to a pre-action protocol. There is a Pre-Action Protocol for Professional Negligence Claims and a separate Pre-Action Protocol for the Construction and Engineering Disputes for claims against engineers, architects and quantity surveyors.

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The aim of compensatory damages for professional negligence is to award 'the sum of money which will put the party who has been injured, or who has suffered, in the same position as they would have been in if they had not sustained the wrong'.  The courts do not compensate for loss arising from risks that were no part of the professional's duty to protect against.

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SPECIFIC PROFESSIONS

 

All professions are regulated by law in the UK see here for further details.

 

 

Lawyers

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The Law Society is an independent professional body that represents the solicitors in England and Wales. The representative and regulatory functions are separated by the Law Society having delegated the function of regulation to the Solicitors Regulation Authority (SRA).  The SRA's role is to prescribe standards for the solicitors' profession to protect the public and to ensure that clients receive good service.

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All solicitors' firms are required to maintain professional indemnity insurance in the event of claims against the firm. The insurance policy must comply with the SRA's Indemnity Insurance Rules. The insurance policy must be with an authorised insurer that has entered into a participating insurer's agreement with the Law Society. The policy terms must include a limit of cover of £3 million for any one claim.

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We assist clients with challenges to Solicitors’ fees.  Overcharging, breaching estimates, or making excessive deductions from compensation are among the reasons for complaints made against Solicitors. 

Solicitors traditionally, charge for their work on the time they spend on your case. Although there has been a shift towards fixed fees, main charging models adopted by Solicitor firms are hourly charges and No Win No Fee agreements. 

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The Court sets hourly guideline rates to be adhered to, which if exceeded are unrecoverable if your case succeeds at Court.  The Court hourly guideline rates can be found here. This means that you could end up out of pocket even if you succeed on a case, because your Solicitor has not charged you proportionate to the case issues and work involved. 

 

Many larger law firms charge above the hourly guideline rates, which are far outweighing that which would be deemed by the Court to be reasonable and proportionate.  They may allocate a case to a Partner, and a day to day conduct Solicitor who is then assisted by a paralegal or trainee.  All of those three fee earners will have a different rate and potentially the fees you pay may not all be recoverable if you succeed on your case.  If the hourly rate is high or there are various levels on your one case, and your solicitor did not advise you that it was higher than that usually charged for work of the nature and issues in your case we may be able to obtain a reduction to the rate charged.  Your solicitor is required to provide you with an estimate of your costs and update you throughout your case. If your solicitor has presented you with a bill which significantly exceeds the estimate you were provided, we can help you to challenge those fees that exceed the estimate.

 

A challenge to what you have been charged is brought under the Solicitor’s Act 1974. This provides that where your solicitors’ costs are reduced by 20% or more the solicitor pays your fees (of the challenge).  For a free review of your Solicitors bill contact us. 

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Where solicitors are instructed on a No Win, No Fee basis they are able to charge a success fee (payable by you from your compensation). Before setting the success fee a Solicitor must undertake a risk assessment to set the level of success, based upon the specific risks of your case.  If your solicitor cannot provide a detailed risk assessment which justifies the success fee charged we are able to assist you with challenging this to obtain a refund for you.

 

If you believe you were not correctly advised and your case has not been managed effectively and excessive costs have been incurred let us review your solicitors file.  

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The Chartered Institute of Legal Executives (CILEx) is an independent professional body who represents CILEx Lawyers and Practitioners in England and Wales.  CILEx Members are regulated by CILEx Regulation Limited (CRL), who like the SRA, is delegated by CILEx to undertake the independent regulatory function of CILEx Members and CILEx Entities (law firms).  The role of CRL is to prescribe standards for the CILEx professionals to protect the public and to ensure that clients receive good service.

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All CILEx law firms are required to maintain professional indemnity insurance in the event of claims against the firm. The insurance policy must comply with the CRL's Indemnity Insurance Rules. The insurance policy must be with an authorised insurer that has entered into a participating insurer's agreement with CILEx.  The policy terms must include a limit of cover of £2 million for any one claim.

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As a CILEx law firm we are governed by the CILEx rules covering indemnity cover and accountancy standards as well as abiding by their Codes of Conduct.

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The Bar Council is an independent professional body that represents the Barristers in England and Wales. As with the SRA and CRL, the Bar Standards Board (BSB) is delegated by the Bar Council to regulate Barristers. The BSB's role is to prescribe standards for the Barristers' profession to protect the public and to ensure that clients receive good service.

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All self employed Barristers are required to maintain professional indemnity insurance in the event of claims against them. The insurance policy must be with the authorised insurer for Barristers and the policy terms include cover up to £2.5 million for any one claim.

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The Legal Services Board (LSB) is the oversight regulator for legal service approved regulators under the Legal Services Act 2007.  The LSB currently has ten approved regulators including the SRA, CILEx, BSB, and seven others.  Other Lawyers who are regulated include Conveyancers, Patent and Copyright Attorneys.  Paralegals work within the regulated legal services sector, and also work outside of regulated entities providing only legal services that do not require authority under the Legal Services Act.  The Legal Services Act is the main legislation that certifies who can conduct reserved activities such as, litigation and advocacy conveyancing and probate services.

 

Medical practitioners

Negligence claims against medical practitioners can arise in any discipline and range from lower-value claims to multimillion-pound complex cases (such as brain injury, or late diagnosis of cancer). These claims will almost always be claims for personal injury.

 

For medical claims, the limitation period is three years (except where the claimant is a child or lacks capacity) and runs from the negligent event, the claimant's date of knowledge or the patient's death.  In negligence claims against clinicians the claimant's most important remedy is damages where the aim is to put the claimant in the same position he or she would have been in had the tort not occurred.

 

Damages are split into two parts. General damages are awarded for pain, suffering and loss of amenity.  Special damages are case-specific and compensate a claimant for financial loss suffered as a result of the clinician's negligence. 

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Each medical professional body has its own regulator. These include the General Medical Council (GMC) for doctors, the Nursing and Midwifery Council for nurses, General Dental Council (GDC) and the Health and Care Professions Council for certain others, including, for example, psychologists and radiologists. Each regulatory body will set standards and codes for its members. For example, the GMC's Good Medical Practice guidance sets out the relevant standards for doctors. All regulators stipulate that medical professionals must have adequate or appropriate indemnity arrangements in place before they can practise.

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Banking and finance professionals

The key legislation governing the regulation of banking and financial professionals is the Financial Services and Markets Act 2000 (FSMA). Under Section 19 of FSMA a person cannot carry out a regulated activity unless authorised or exempt. Regulated activities include accepting deposits and advising on, arranging or dealing in investments.

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The three main regulators are the Bank of England, the Prudential Regulation Authority (PRA) and the Financial Conduct Authority (FCA). The Bank of England is primarily responsible for failing banks. The PRA promotes the safety and soundness of financial institutions, and the FCA is responsible for protecting consumers and the conduct of business. Both the PRA and the FCA promote competition within the industry.

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Aside from FSMA, the main rules applicable to banks and financial professionals are contained within the PRA and FCA handbooks. Both the PRA and the FCA issue further guidance and reviews, which establish expectations of banks and financial professionals.

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The PRA and FCA can both take disciplinary action against banks or regulated financial institutions, and against controlled function holders that have contravened their rules. In addition, by virtue of the Senior Managers and Certification Regime, the PRA and FCA's conduct rules have also been extended beyond controlled function holders to certain other individuals within such institutions.

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Claims can be brought through the courts or through the Financial Ombudsman Service (FOS) or the Pension Ombudsman Service (POS). 

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The Financial Services Compensation Scheme (FSCS) acts as deposit insurance for eligible customers and is funded by financial services firms. In addition, most FCA-regulated firms are required to have professional indemnity insurance as an extra financial resource and to prevent excessive claims on the FSCS.

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Computer and information technology professionals

Claims against software and information technology professionals by their clients tend to be governed by standard form service contracts. There are a range of voluntary professional standards to which information technology professionals may subscribe and which can be written into service contracts. Among the range of issues most likely to arise in disputes are:

1. the incorporation of terms and conditions into the service contract;

2. interpretation of client requirements for the scope of services;

3. representations relating to scope, price and timescale;

4. effect of limitations of liability;

5. contract termination; and

6. service levels.

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Real property surveyors

Surveyors are bound by the RICS Home Survey Standard aimed at ensuring that surveyors provide the most appropriate type of survey to their customer.   In 2021 the Court of the appeal in Chris Hart and another v. Richard Large found that a defendant surveyor was liable to the claimants for the difference in the value of their property attributable not only to defects that the surveyor should have reported on but also to those defects he could not, with due care, have identified at the time of his inspection.

 

The Court of Appeal upheld that decision, concluding that the measure of loss applied by the trial judge was appropriate and that any other measure would not have compensated the claimants for Mr Large's negligence. This was even though Mr Large could not reasonably have identified all the defects upon making his inspection. He should, however, have 'seen enough to give rise to a trail of suspicion' and to recommend obtaining a professional consultant's certificate (PCC), which, if obtained, would have provided the claimants with some protection against the risk of latent defects.

 

Construction professionals

The Grenfell Tower fire continues to have a significant impact on construction professionals.   In April 2021 the Fire Safety Bill received Royal Assent to become the Fire Safety Act 2021. The Act makes amendments to the Regulatory Reform (Fire Safety) Order 2005 placing obligations on the 'responsible person' to undertake fire risk assessments of the external walls and balconies (if any) of any multi-occupied residential building.

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Accountants and auditors

The accountancy and audit professions are regulated by their professional accountancy bodies, with individuals and firms being enrolled as members of one or other of them, subject to the current oversight of the Financial Reporting Council (FRC).

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The FRC has statutory oversight of the audit profession pursuant to the Companies Act 2006. The FRC discharges these responsibilities by recognising certain professional accountancy bodies as recognised supervisory bodies (RSBs) and recognised qualifying bodies (RQBs). Currently, the RSBs are the Institute of Chartered Accountants for England and Wales (ICAEW) and Scotland (ICAS), Chartered Accountants Ireland (CAI) and the Association of Chartered Certified Accountants (ACCA), and the RQBs are the ICAEW, ICAS, CAI, ACCA and the Association of International Accountants.

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The FRC delegates certain regulatory tasks, including registration and authorisation, monitoring, professional conduct and discipline, to the RSBs in respect of their members who are statutory auditors and audit firms.

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Accountants and accountancy firms who are not exercising an audit function are regulated by the professional accountancy bodies to which they belong.  Each professional accountancy body has its own insurance scheme requirements. They all require their members to have some form of professional indemnity insurance including compulsory limits of indemnity and minimum terms.

 

Insurance professionals

Insurance professionals are governed by the Financial Conduct Agency (FCA).   Insurance professionals must understand the Insurance Act 2015, which came into force in August 2016.  A broker has a duty to understand and highlight the impact that the Insurance Act 2015 has on the policies that it is placing for its client.

 

 

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