Partner Article

Dispelling the myths around professional negligence claims

Chris Macwilliam – partner at Clough & Willis – dispels some of the myths around making a professional negligence claim…

Times are tough, we all know that. Things are getting better, but it’ll take some time. Both fair assumptions that no-one would argue with.

In the business world, there are challenges like these but owners and directors should – quite rightly – be able to assume that when they go to a fellow professional for advice the guidance they receive should be first class and reliable.

That view has never been more important but, over recent years, we have seen more and more clients coming through the door who have had the opposite experience that has cost them dearly; both financially and emotionally. However, many don’t know what their rights are or what they can do to redress the situation.

I’m not tarnishing all advisers and it - of course - goes without saying that the vast majority of professionals have very high standards and provide an excellent service but sometimes they make mistakes and, when they do, it can be devastating.

We’ve seen small to medium sized businesses be almost brought to their knees by receiving wrong advice; with the most common problems being with accountants, surveyors, architects and, dare I say, my colleagues in the legal world.

Cases vary hugely but regular issues include; when solicitors fail to advise correctly on TUPE regulations which results in a client being saddled with employees it wasn’t expecting and couldn’t afford; when accountants provide poor tax advice which results in a huge tax bill that could have avoided or budgeted for; and when surveyors miss major subsidence issues on a newly acquired premises which results in costly remedial work, a potential reduction in the property’s value and losses if a business has to close temporarily.

Judging by the level of enquiries we are receiving, it does look as if such mistakes - or at least the willingness of business owners to do something about it - are on the increase. However, some people are still unsure about how the process works.

Making a professional negligence claim does not necessarily mean launching court proceedings; this is a key misunderstanding as many are fearful of spiralling costs. A protocol covers these kinds of claims and they can be, and now often are, settled by negotiation or mediation without the need to take court action.

Time is another issue but quickly and accurately identifying the issues, what outcomes are achievable and what the best realistic solution for the client is are all key to successfully resolving a professional negligence claim. It doesn’t have to be onerous if a few simple steps are followed.

Also, claimants need to decide if money is the only compensation they’d consider or could other solutions—for example relocation or provision of other services - be negotiated? There’s no one size fits all approach but options are available.

To sum up, the law is there to help businesses in these types of situations so there is no need to shy away from using it. Sometimes issuing court proceedings may be the only solution but more often than not common sense and reasonableness often prevail.

This was posted in Bdaily's Members' News section by Clough and Willis .