Guide To Professional Negligence Claims

Transcription

1 Guide To Professional Negligence Claims This Guide describes how to obtain compensation if you have suffered financial loss due to the negligence of your accountant, surveyor, solicitor or other professional adviser. It goes through the stages of making a complaint to your adviser, pursuing the complaint through your adviser s professional body, and finally (if all else fails) making a claim and going to court. Most professional advisers provide a professional and competent service. Usually their clients are happy with the work carried out for them. But sometimes things go wrong, and if you have employed an adviser and suffered a financial loss, you may be able to make a claim against them, whether you engaged the adviser as a business or an individual. What Circumstances Give Rise To A Claim? Was It Negligence - Or Just Poor Service? It is important to distinguish between actions by your adviser which have caused you a financial loss, and poor service which does not actually cause a loss. Poor service might include delays, a failure to communicate or answer your calls and correspondence. While poor service is annoying and frustrating and should not happen it will not allow you to make a claim for damages against the adviser. To be able to do that you must have suffered a loss due to the negligence or carelessness of the adviser. What Can Give Rise To A Claim? If you employed an adviser and their actions or failure to act cause you a financial loss, you may be able to make a claim to recover the loss. In what circumstances are you likely to be able to do so? This guide is for reference purposes only, and does not provide advice for any particular set of circumstances. Feakes & Co, Riverside Court, Beaufort Park, Chepstow NP16 5UH ( ), Authorised and regulated by the Solicitors Regulation Authority (SRA) number

2 These are some typical scenarios: Accountant - Insurance broker Failure to submit tax returns or accounts on time resulting in fines or interest payments Obtaining insurance for you that is not in fact required, resulting in unnecessary payment of premiums Failing to place insurance, meaning that you are not insured when a loss occurs (such as a Public Liability claim, or property damage) Solicitor Failing to check title documents on a conveyance, resulting in your not owning all of the property you thought you were buying Not issuing court proceedings in time, so that a limitation period expires and the claim is lost Architect Poor design or badly-drawn plans, requiring you to pay for them to be done again Inadequate project management, resulting in cost over-runs or spiralling budgets Financial adviser Negligent advice on tax or investments, pension and estate planning, resulting in financial loss Recommendations to use inadequate or inappropriate materials, causing you to incur costs unnecessary Barrister Surveyor/Valuer Advising you to settle a claim for damages at significantly less than you could have received, so that you receive less in damages than you should have done Under-estimating the costs of a project Over-valuing a property before you buy it, resulting in your owning property worth less than you paid for it Failing to report defects in a property before you buy it 2

3 Examples a) Negligently-prepared accounts leading to a fine Mr Harris is a successful businessman, running his own engineering consultancy. He has used the same accountants for many years to complete his tax returns. Due to an expansion of his business, Mr Harris has recently taken on a new bookkeeper. The bookkeeper discovers that the accounts have been prepared incorrectly for the last 5 years. This is despite Mr Harris providing accurate information to the accountants. HMRC has now become involved, and has fined Mr Harris a significant amount of money. Mr Harris is likely to have a claim against the accountant. b) Failure to check title documents Haines Charlton PLC is a haulage company, and owns a number of warehouses and depots across the West Country. They wanted to expand one of their sites, and employed a solicitor to buy some land next to it. The only access to the proposed site from their property was across an adjacent piece of land. The purchase went through, but after 6 months the company received a letter from a farmer claiming to own the access land. He refused to allow them to continue to use it. Haines Charlton s solicitors had not investigated the title documents for the vacant land properly. They had not advised the company about the potential access problems. They are likely to have a claim against the solicitor for the cost of remedying the situation. c) Failure to identify subsidence, leading to expensive repairs Miss Webb bought a house 2½ years ago. It was an old house, and she obtained a full structural survey by a local firm of chartered surveyors. The survey said that other than some minor work that needed to be carried out on the roof, the house was in a good condition. 3

4 On coming back from a summer holiday, Miss Webb has noticed large cracks around the fireplace. She arranged for another surveyor to examine the house. The second surveyor reported that that the house is suffering from subsidence. In fact, it had been for many years it is going to be costly to remedy the situation. Her building insurers don t want to know, because the subsidence predated her purchase. If Miss Webb had known about this from the first surveyor s report, she would never have bought the house. She is likely to have a claim against the surveyor. d) Poor service, not negligence PLK Media Ltd is a successful advertising and design business. It recently retained solicitors to draft some commercial contracts. The solicitors estimated that the work would cost the business 7,500 and would take 6 weeks to complete. It is now 3 months later, and the work is still not complete. PLK Media have been calling the solicitor drafting the contracts, and the head of department, for several days now. They will not take the calls, and do not call back. Today PLK Media have received a bill for the work, for 10,000-2,500 more than the estimate. PLK Media cannot pursue a professional negligence claim the delays, lack of communication and higher than expected bill are examples of poor service, not negligence. They can make a complaint to the solicitors, and then if he is not satisfied to the Legal Services Ombudsman. What To Do Before Making A Claim Make A Complaint Before making a formal claim, you should follow up your adviser s own complaints procedure. This should be set out in your retainer letter or other correspondence from the adviser. If not, the procedure may be on their website. If it is not there either, ask the adviser directly (or the senior partner of the firm). 4

5 You should write to them (or follow up a telephone call in writing) so you have a written record of what you say. The adviser should respond within a short period (8 weeks maximum). The complaints procedure may involve asking an independent person or body to arbitrate the dispute. If you do not have the time to make the complaint yourself, or do not want to do so, your solicitor can do so on your behalf. Contact The Professional Body After making a complaint, you may find that the adviser does resolve it satisfactorily. If not, or you just do not from them, the next step is for you to contact the adviser s professional membership organisation (or regulatory body) to pursue the matter. (However, if the adviser s complaints procedure states that the matter should be referred to an independent person or body, you should first do that.) See the details of professional bodies at the end of this Guide. Again, if you do not have the time or do not want to contact the professional/regulatory body yourself, your solicitor can do so on your behalf. How To Make A Claim Making A Claim If your complaint has not been resolved by the adviser or the professional/regulatory body, your next step may be to bring a claim against the adviser for damages. This may also be the case if your complaint has been investigated by the FOS (Financial Ombudsman Service) and you are not happy with the outcome and do not want to accept it. If you have not already instructed a solicitor, you may wish to do so at this stage. Your solicitor will write a formal letter of claim under the Civil Procedure Rules (CPR). Ultimately, it may be necessary to issue court proceedings to recover damages. See our Guide To The Litigation Process for further details. 5

6 Time Limits Your solicitor will be able to advise you on the time limits by which proceedings must be issued. If they are not issued in time, the claim will likely be lost, i.e. you will not be able to pursue it. Accordingly, it is important to contact your solicitor as soon as possible. The main time limit is that a claim must be brought within 6 years of a breach of contract or of loss caused by negligence. For example, your financial adviser informed you 5½ years ago of a tax planning scheme and advised you to participate in it. The HMRC has recently levied a fine on you because of your participation in the scheme. If your financial adviser was in breach of contract by giving you the advice, you may have only 6 months within which to issue proceedings. Appendix Contact details for professional and regulatory bodies: Accountant If your accountant is a member/fellow of the ACCA (the Association of Chartered Certified Accountants) contact: Professional Conduct, ACCA, 29 Lincoln's Inn Fields, London WC2A 3EE (tel: , professionalconduct@accaglobal.com) If your accountant is a member/fellow of the ICAEW (the Institute of Chartered Accountants in England & Wales) contact: Professional Conduct, ICAEW, Chartered Accountants Hall, Moorgate Place, London EC2R 6EA (tel: , membership.admin@icaew.com) Insurance Broker Insurance brokers and intermediaries are regulated by the Financial Conduct Authority, and complaints should go to the Financial Ombudsman Service (FOS); 6

7 the FOS s complains procedure is online at financial-ombudsman.org.uk, or on the telephone: or You should contact the FOS within 6 months of receiving a final response from the broker Solicitor Solicitors are regulated by the Solicitors Regulation Authority, but complaints should go to the Legal Ombudsman, PO Box 6806 Wolverhampton WV1 9WJ (tel: ; enquiries@legalombudsman.org.uk) Architect Architects are regulated by the Architects Regulation Board (ARB); complaints should go to: Professional Standards Department, ARB, 8 Weymouth Street, London W1W 5BU (tel: ; professionalstandards@arb.org.uk) To be regulated by the ARB, your architect must be registered with them; check online if yours is registered: architects-register.org.uk Financial adviser/ifa Financial advisers/ifas are regulated by the Financial Conduct Authority (FCA), and complaints should go to the Financial Ombudsman Service (FOS); the FOS s complains procedure is online at financial-ombudsman.org.uk, or on the telephone: or You should contact the FOS within 6 months of receiving a final response from the financial adviser/ifa. Barrister 7

8 Barristers are regulated by the Bar Standards Board, but complaints should go to the Legal Ombudsman, PO Box 6806 Wolverhampton WV1 9WJ (tel: ; Surveyor/Valuer Surveyors and Valuers are regulated by the Royal Institution of Chartered Surveyors (RICS), and there is an online complaints procedure on the RICS site (rics.org.uk); complete the form on the site and to: 8