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Category Archives: Professional Negligence

Architect professional negligence claim

By Professional Negligence Department | Published: May 17,2013

If ever you instruct an architect to build or make extensive redesigns to a building, you want to be sure that you get both the right architect for the job and the right builder to carry out the work required. A recent architect professional negligenceclaim highlights many of the issues and dangers that typify the client-architect relationship. Indeed, it should be seen as instructive.

The case concerned a married couple who bought a property in the desirable riverside location of Putney, West London. They had instructed a firm of architects to plan the redesign, which, in turn, had connected the claimants with a firm of builders – recommending its quote on the work as being both cheap and reliable.

However, several weeks after the near £300,000 works were completed on the £1.7 million property, a number of defects became clear: damp, defective floor tiles, as well as faulty plumbing and electrical works included.

Expressing obvious concern, the owners of the property decided to pursue an architect professional negligence claim, arguing that, as the overseeing architect, the defendant failed to adequately monitor the work of the builder. In short, argued the claimant, the architect should have noticed the defects and taken steps to remedy them.

However, when it also became clear that the building firm had filed for insolvency, the claimants were left with the architects as the sole potential defendant, so took out an architect professional negligence claim for a full £800,000 (including potential losses).

However, the defendant attempted to counter the claim by arguing that the retainer included a net contribution clause, which limited their liability: “Our liability for loss and damage will be limited to the amount that is reasonable for us to pay in relation to the contractual responsibilities of other consultants, contractors and specialists appointed by you.”

However, in considering the net contribution clause, the judge hearing the case ruled that as the architect had both recommended the builder and received a fee for their work, it could not hide from liability in the specific wording of the net contribution clause. As such, the architect professional negligence claim succeeded, and the claimants will receive a payout.

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Negligent advice and the assumption of action

By Professional Negligence Department | Published: May 12,2013

Taking out a claim for professional negligence against a legal or financial advisor will always require careful forethought.

However, if the claim is brought forward because the poor advice has caused the client to become involved in a transaction which has resulted in them suffering financial loss, it is easy to see why this course of action might be inevitable.

Every year in the UK, professional negligence lawyers and the court system hear cases in which either corporate lenders or private clients take action against their advisors after obtaining information which, they say, has caused them financial loss.

Put simply, in these legal and financial advice professional negligence cases it is up to the courts to decide whether there was indeed negligence, whether this led to specific actions which caused financial loss and whether it was reasonable for the advisor to assume that the advice given would be acted upon by the client. In the event that the specific claim meets these tests, it will not be possible for the claimant to secure compensation.

These matters are relevant today because, with the UK economy currently flat-lining and uncertainty regarding the long-term viability of job security and pension schemes, people are more than ever before relying on professional legal and financial advice to help provide for their futures. If your professional gets it wrong, it is good to know that you always have recourse to a professional negligence claim. After all, professional advice, what is it for?

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Adjudication decision failed to offer adequate explanation

By Professional Negligence Department | Published: May 8,2013

Adjudication is generally considered a very good and relatively non-contentious means by which parties can settle a professional negligence dispute.

However, a recent case in Scotland has raised some interesting questions regarding just how seriously disputing parties might take the resolutions offered by the adjudication process.

In the case, a whisky maker, Whyte and Mackay, sought damages for what it claimed were the defective foundations in their new bottling plant, which had been designed by the defendant, Blyth & Blyth.

Under the terms of contract between the two parties, it is reasonable to refer any professional negligence dispute arising from the work to a adjudicator. This is exactly what they did, and the adjudicator gave a decision, resolving that Blyth and Blyth should pay the whisky maker nearly £3 million compensation.

However, in seeking the claimant’s attempt to enforce the decision at the Court of Session, Blyth and Blyth successfully countered that the adjudicator had failed to give adequate reasons for his decision, meaning his determination was incompatible with the European Convention on Human Rights – a judgement which has resulted in a reduction the size of the settlement.

Interestingly, Lord Malcolm ruled that adjudication should be viewed only as a “rough and ready”, which, although “speedy and relatively cheap” provides only a “provisional award pending a final determination by litigation, arbitration or agreement”.

It is worth bearing in mind that the design and construction professional negligence dispute at the heart of this case was very high value and that courts may give more weight to adjudication rulings in cases of lower monetary value.

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Accountancy firms facing professional negligence claims

By Professional Negligence Department | Published: May 6,2013

Tax avoidance schemes have been in the headlines a great deal recently, particularly as the ‘squeezed middle’ finds itself in an increasingly tight space – financially speaking – while major corporations such as Google and Starbucks come under public criticism for the way they use legal loopholes to lower their tax liability.

However, there has been a knock-on effect to the crackdown on tax avoidance, with an increasing number of businesses and individuals contacting professional negligence solicitors about accountancy firms who advised them on tax avoidance schemes which are now being looked at in detail by HMRC.

“HMRC is poring over many of the tax avoidance schemes that were set up before the financial crisis. It is taking a very aggressive approach towards individuals and is frightening many of them into paying the disputed tax, without having to show that the tax is lawfully due,” said one insider.

However, he also said that rather than pursuing accountancy professional negligence claims, some of those concerned would perhaps be better off challenging HMRC.

“A lot of professional indemnity insurers are concerned that some of the negligence claims they are being notified of are shaky at best. We urge them to consider defending the growing number of claims robustly,” he added.

Those who believe they might have strong grounds for an accountancy professional negligence claim can contact the specialists at Healys LLP lawyers in Brighton and London for more information.

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Claims for solicitor negligence could rise following court rule change

By Professional Negligence Department | Published: May 4,2013

There is a strong likelihood that there could be an increase in professional negligence claims against solicitors following a change in the rules relating to compliance with court processes and timetables.

As a result of the changes to the law, solicitors face tougher sanction if they fail to adhere to the strict deadlines in place across the nation’s courts. As a result solicitors could harsher penalties – while there will be fewer opportunities for solicitors and lawyers to plea exceptional or mitigating circumstances.

It is thought that the changes have been introduced as part of wider reforms aimed at altering the litigation landscape in Britain – Lord Justice Jackson, the instigator of reforms has spoken of a desire to end the “culture of toleration of delay and non-compliance with court orders.”

So, with less scope for escaping court time limits and processes, those solicitors who fail to act in time could face an increased possibility of claims for negligence.

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Negligence claim against solicitor doesn’t reach court

By Professional Negligence Department | Published: Apr 19,2013

Sometimes negligence claims against solicitors never reach court and are instead settled in all the mystery of the behind-closed-doors deal.

A good example of this was reported in Ireland last week. The case involved a woman who had been seeking to make a negligence claim against her solicitor, alleging that he had been negligent in helping her make an employment tribunal claim by allowing it to become time-barred – just as in the United Kingdom in Ireland there are strict time limits in place which apply to the making of a professional negligence claim.

Further to this, the claimant also alleged that her solicitor had breached her trust by entering into talks with the defendant without her consent.

What was clear was that the solicitor strenuously denied all the allegations, saying that his former client had no grounds for securing professional negligence compensation.

However, in a mysterious development, the President of the High Court recently revealed that the action had been resolved, saving at least three or four days of court time in hearing the woman’s negligence claim against her solicitor.

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Professional negligence solicitors give claimants until May

By Professional Negligence Department | Published: Apr 15,2013

Those looking to make pension-related claims for professional negligence against Scottish Widows have been informed that they have only limited time if they are to make moves to secure compensation for mis-selling.

According to those who are encouraging the pensions professional negligence claims, the settlements from the claims could be worth in excess of £1 billion, following allegedly “inadequate and imbalanced” advice given to trustees at the turn of the millennium.

Now a firm of professional negligence solicitors has written to the affected trustees to let them know the limitation period for claims is due to come into effect in May, meaning any claims attempted after this date will, ultimately, be disbarred.

“It would seem prudent for trustees to keep their options open by lodging a claim now. The process takes a few weeks so they really need to act as soon as possible since we think these cases may time bar in May,” said one of those concerned.

“The real risk is if they wait to find out what is happening to the other cases they might then decide to raise proceedings only to find their case is proscribed. It is a decision for each set of trustees to make but time is running out,” he added.

However, Scottish Widows has said that it is surprised that there have been renewed efforts to make the claims for negligent pensions advice given that the Court of Session has previously dismissed all allegations of professional negligence related to the scheme.

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Funding for professional negligence claims changes on April 1st

By Professional Negligence Department | Published: Apr 3,2013

March 28th marks the end of no-win, no-fee funding arrangements for professional negligence claims in the UK.

For many, this is a great shame – no-win, no-fee and conditional funding arrangements have allowed claimants to pursue cases where, in the absence of private income or savings, they would otherwise have been unable to do so.

Many argue that one of the great misconceptions about this system of funding is that it encouraged trivial claims. Trivial professional negligence claims , they say, are quickly weeded out by solicitor firms who recognise when it is not in their interests to pursue a claim which has little likelihood of success.

This is an argument which holds water. After all, why would a firm waste time, staff, and money on a claim which is only likely to end in defeat? – last time I checked a high failure rate was not considered a badge of honour for legal firms.

As of April 1st, with the introduction of the Legal Aid, Sentencing, and Punishment of Offenders Act 2012, success fees and ATE premiums will no longer be recoverable in the event of a win, and successful claimants will have to pay these costs from the settlements they receive as well as – in many cases – the opponent’s costs, acting as a further disincentive to those who have the most pressing financial reasons for making claims for acts of professional negligence.

It is hoped that the introduction of the new bill will not draw a sigh of relief from negligent solicitors, surveyors, accountants, and other professionals across the country.

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Thousands complain to The Financial Ombudsman Service

By Professional Negligence Department | Published: Mar 19,2013

When an individual believes they have suffered monetary loss due to factors such as poor investment advice or as a result of professional negligence, he or she may choose to contact the Financial Ombudsman Service.

These independent experts usually provide free, impartial advice to those making complaints against financial businesses. If the organisation believes an individual could have a successful case, it will attempt to put matters right – and potentially help consumers claim compensation.

Recently, it has been reported that during the nine months leading up to the start of 2013, more than 350,000 individuals contacted the Financial Ombudsman Service in order to make a complaint.

Speaking to the Association of Short Term Lenders, a spokesperson for the organisation suggested that many of these complaints could have been down to mis-selling of payment protection insurance (PPI).

Due to receiving numerous complaints, the Financial Ombudsman Service has reportedly had to hire 1,000 extra employees – and could recruit an additional 1,000 to exclusively handle PPI claims.

This announcement suggests that many individuals might have been mistreated by financial organisations last year. Potentially, these people may be entitled to claim compensation through an experienced Healys London or Brighton professional negligence solicitor.

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Microsoft fined €561 million by European Commission

By Professional Negligence Department | Published: Mar 13,2013

Although the vast majority of companies adhere to their contractual requirements and deliver a service which is expected by their consumers, when an individual suffers financial loss due to an act of professional negligence, he or she may be able to claim compensation through the services of a specialist law firm.

While the prospect of litigation could dissuade many firms from breaching its duty of care, a recent court case demonstrates that no company is immune from prosecution.

Software giant Microsoft has been fined €561million (approximately £489million) by the European Commission (EC) after what appears to be a breach of contract. After it was suggested that Microsoft was giving Internet Explorer an unfair advantage, the corporation made a commitment in 2009 – lasting for five years – where it would offer customers a choice of different browsers, such as Google Chrome or Mozilla Firefox.

However, it has been reported that consumers who purchased a Windows device between May 2011 and July 2012 in Europe were only offered Internet Explorer – breaking the 2009 agreement.

A spokesperson for the EC commented on the matter, stating, “I hope this decision will make companies think twice before they even think of intentionally breaching their obligations or even of neglecting their duty to ensure strict compliance.

“If companies agree to offer commitments which then become legally binding, they must do what they have committed to do or face the consequences.”

Following the breach, Microsoft allegedly took full responsibility, apologised, and blamed a “technical error” for the incident.

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