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.

​

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.

​

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.

​

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.

​

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.

​

​

 

​