Professional Negligence: A Penalty Kick?
22 May 2020
MKB Law presently act for a significant number of clients in professional negligence actions. Professional negligence is a phrase that instills terror into the heart of every professional and a risk from which none of us is immune. What is the basis for an action in professional negligence? Having understood this, what simple steps can be taken by a professional to minimise the prospects of having to defend an action and, rather, to secure and maintain client relationships.
In this blog, we consider these questions in some detail.
What is the basis for an action in professional negligence?
The duty of a professional to exercise reasonable care and skill
A professional is best considered as an individual who professes to hold a specific skill. In most cases, this will be self-evident by virtue of a professional title or qualification. When acting for a client a professional is under a duty of care to provide services with reasonable skill and care. Much of the relevant case law in this area has developed from medical negligence cases and the leading Supreme Court authority of Montgomery -v- Lanarkshire Health is worth consideration. This decision was cited in the Northern Ireland Court of Appeal case of Baird -v- Hastings where it was commented that “as in the medical context, the advisory role of the solicitor must involve proper communication and dialogue with the client.”
Assessing whether a professional has fulfilled his or her instructions with reasonable care and skill is often a significant exercise in itself and will require a separate, focused discussion. However, it is important to emphasise that a professional having made a clear and discernible error does not, by default, expose him or her to a claim in negligence. Rather, it is necessary for the error to be “so blatant as to amount to negligence” (see Saif Ali -v- Sydney Mitchell & Co)  AC 198.
Any breach of duty must cause loss to the plaintiff
Professional negligence cases are rarely straightforward. Put another way, it is by no means certain that because a duty of care has been breached an award of damages will follow. It is absolutely essential in any case to show that the negligence has directly caused loss to the client. This is best illustrated by reference to actual case scenarios.
In one case in which MKB Law acted, a solicitor was clearly negligent in failing to issue protective legal proceedings to protect a plaintiff’s case of action in a personal injury case. It became apparent, however, upon review of the original file that based on the evidence to hand there had at no stage been any realistic prospect of success in the original action. As a result, no loss could be connected to what was, inarguably, an act of negligence. In a second case, a solicitor had clearly been negligent in failing to secure a necessary easement in a property transaction. This meant that completion was delayed, costing the client significant sums. However, it transpired that notwithstanding the solicitor’s negligence other factors outside of the solicitor and client’s control meant that delay to the completion date would inevitably have resulted irrespective of this.
Simple steps to minimise risk:
Carefully prepare a clear letter of engagement
In the case of a solicitor, as with many other professionals, a key document in the solicitor/client relationship is the letter of engagement. Carefully setting this out and defining the instructions clearly are important first steps. A carefully drafted letter of engagement epitomises clear communication which has been highlighted as so important by the Courts.
Continue to communicate regularly and in writing at each stage of the case
The importance of communication and dialogue in a professional/client relationship cannot be overstated and the lack of adequate communication is probably the leading cause of professional negligence actions.
Take careful attendance notes of telephone and video calls, consultations and discussions with clients
A careful record of instructions and the documenting of risks and options as discussed with the client makes a course of action much more straightforward to defend if, later down the line, it is subject to criticism.
Be cautious stepping outside your own area of expertise
The test the Court will apply will not distinguish between you and a professional regularly working in that particular area.
If you require assistance in relation to any of the points raised in this article, please contact the Dispute Resolution and Litigation team at MKB Law.