What is professional negligence and how do I claim in Scotland?
A property deal that went south. An accountant’s error led to an unexpected tax audit. A lawyer missing a deadline in court. In such circumstances, individuals and businesses may suffer huge financial loss with little idea of what went wrong.
This article considers how a professional negligence claim works in Scotland, who may have a claim, how liability is established and the process for seeking compensation. It also highlights common mistakes made by claimants and professionals when the dispute first arises.
What is a Professional Negligence Claim?
A professional negligence claim arises where a professional fails to exercise the standard of care expected of someone providing professional services.
The legal test for establishing professional negligence focuses on whether the professional acted with the competence that an ordinarily skilled practitioner would have exercised in similar circumstances. The test for establishing professional negligence does not require perfection. A poor outcome alone is rarely enough.
The court will look at whether there was a duty of care and whether the professional fell below the standard of ordinary skill.
Who Can Bring a Claim for Professional Negligence?
A claim for professional negligence can be brought by any individual, business, landlord, director, charity or other organisation who has suffered harm or loss.
A claim against a professional often follows negligent advice, defective reports, missed deadlines, inaccurate calculations, or failures to provide a service with reasonable competence.
The key question is whether the claimant suffered as a result of the negligence and whether those losses can be proven.
What Are Common Examples of Professional Negligence?
Examples of professional negligence arise across a wide range of industries.
Claims might be that a solicitor missed a limitation deadline, an accountant gave wrong tax advice, a surveyor failed to spot serious defects, insurance brokers arranged inadequate cover or construction professionals produced defective designs.
Claims can also arise against financial advisers, architects, engineers, and other professional advisors.
How Do You Prove Professional Negligence?
To prove professional negligence, evidence is everything.
Documents, correspondence, contracts, file notes, witness statements, and expert evidence are frequently required. In many cases, an expert report is needed to assess whether the professional’s conduct fell below accepted standards.
Sometimes a case appears strong at first glance. Then the documentation tells a different story. Equally, apparently weak claims can strengthen considerably once the recovery of documents takes place.
Can You Make a Professional Negligence Claim Against a Solicitor?
Yes. Claims against legal professionals are regularly pursued throughout Scotland.
Alleged negligence may include missed deadlines, bad legal advice, failures in litigation, errors in property transactions and other legal services.
The Law Society of Scotland regulates solicitors, but regulatory complaints and compensation claims are separate processes.
What Financial Losses Can Be Recovered?
The purpose of a professional negligence claim is generally to place the claimant in the position they would have been in had the breach not occurred.
The level of compensation depends on the evidence available and the result of the negligence. Claimants may be able to recover losses directly attributable to the error.
Disputes often centre on whether the alleged error actually caused the loss. Even where a breach of contract or negligent act is established, compensation will not automatically follow unless loss can be proven.
What Is the Pre-Action Process?
Before court proceedings begin, investigations should be carried out carefully.
A letter of claim is usually sent setting out the allegations, the losses claimed, and the evidence to support your claim. The recipient’s insurer will often become involved at an early stage because professional indemnity policies commonly respond to such allegations.
Although Scotland does not operate the same pre-action protocol system used in England and Wales, early engagement remains an important feature of dispute resolution.
Do Professional Negligence Cases Always Go to Court?
No. Many professional negligence cases settle through negotiation, mediation, or other forms of alternative dispute resolution.
Settlement discussions are often affected by professional indemnity insurers. Well before parties actually go to court, negotiations are often driven by a realistic assessment of risk, evidence, expenses and likely outcomes.
What Happens If Court Action Becomes Necessary?
Where settlement cannot be achieved, court action may follow.
Depending on value and complexity, cases may be heard in the Court of Session, Commercial Actions, Ordinary Cause procedure or Simple Procedure. Claims for professional negligence require careful preparation of pleadings, witness evidence and expert material.
The legal team will also look at interim remedies, appeals and likely litigation costs.
Are There Time Limits for Making a Claim?
Yes. Time limits can be decisive.
In many situations, a claim must be raised within five years from the date the loss became known, although prescription issues can be highly fact-specific. A claim outside the applicable period may fail regardless of its merits.
Anyone considering a claim should seek expert legal advice promptly.
How Can Professional Negligence Solicitors Help?
Professional negligence solicitors are experienced in establishing liability, analysing evidence, obtaining expert advice and assessing the amount of compensation that may be recoverable.
Whether acting for claimants or defenders, a professional negligence team will evaluate the legal test, identify the strengths and weaknesses of the case, and advise on settlement or court strategy.
Claims occur throughout Scotland, including Glasgow and Edinburgh. Some of these involve accountants, surveyors, personal injury solicitors, medical negligence disputes, and complex commercial matters. Some relate to personal injury cases where the injuries suffered were said to be aggravated by negligent professional conduct.
Professional negligence solicitors understand that dissatisfaction with a level of service is not enough. The focus is always on whether the professional’s conduct fell below the standard expected of someone acting with ordinary competence.
If you believe you have suffered financial loss because of professional negligence, contact SGT Law Firm for expert legal advice. Our team can look at your claim, talk through your options and help you pursue the compensation you may be entitled to.
