Professional negligence law: area of practice
Solicitors with a specialisation in professional negligence work tend to act either for defendant professional firms or for claimants. Solicitors represent all types of professionals who are being sued and their insurers. Clients include regulators, solicitors, barristers, accountants, architects, engineers, building contractors, surveyors, insurance brokers, estate agents and auctioneers.
Professional negligence work is hugely varied, and having 20–25 cases on the go at any one time is typical. I specialise in representing lawyers, and cases can arise out of any commercial area of legal practice, such as pensions, litigation, corporate finance or pure contract work. My colleagues who advise accountants tend to deal with claims arising out of audit work and tax advice. Property professionals, such as surveyors and valuers, are often sued in relation to property valuations. Bolts that sprang off the ‘Cheesegrater’ building in London formed the basis of a recent negligence case against a structural engineer.
Professional negligence pre-action protocol
The length of a case is influenced by the process and procedures in this field. The courts require parties to go through a professional negligence pre-action protocol before litigation, starting with a letter of claim to the defendant setting out the basis of the claim and providing copies of the details of documents the claimant plans to rely on and the amount of compensation they are seeking. The defendant has three months to respond by either: agreeing to pay the compensation (usually the least likely outcome); agreeing to discuss settlement or take part in mediation; to settle the case (in which case the pre-action protocol period is extended by a further three months); or giving a list of reasons why the claim will fail and inviting the claimant to issue court proceedings.
An average case that goes through the protocol and then to litigation takes about two years from beginning to end. In the period immediately before a trial, it’s all hands to the pump, getting documents to court and witnesses of fact and expert witnesses lined up. Otherwise, the hours are typically 8.30 am to 7.30 pm. There is some weekend working, especially as a partner, writing articles on current issues or preparing talks and seminars. The size of the team will depend on the complexity of the case, but will include at least one partner, an associate, a trainee and a paralegal.
Although a substantial amount of time is office based, professional negligence solicitors get out and about to meetings with clients, witnesses, experts and counsel (barristers), and to court.
Some legal practice areas involve more case law than others; if you like analysing the law, this is a fulfilling area of commercial litigation with a rich body of case law behind it. Many prominent tort cases are professional liability cases and new, emerging cases are frequent. A recent important case is the BPE case, which clarifies the extent to which professionals can be held liable for getting things wrong. It reinforces a 1990 case called SAAMCO.
Our professional clients are always very engaged with us and helpful. One of the downsides is that there’s often a squeeze on the costs that we expend on defending the professionals.
How recession-proof is professional negligence law?
There was an uptick in claims following the economic collapse in 2008. Businesses went sour and searched for a professional to blame.
How will Brexit affect professional negligence law?
I don’t think there’s going to be a huge impact as the courts in England and Wales will remain a popular place for people to resolve their disputes. Lawyers will always be needed to make the wheels of commerce go round and humans will always make mistakes.
Read TARGETjobs' advice on how to talk about Brexit in your training contract interview here.
What sort of work do trainees in professional negligence do?
There is plenty of early responsibility for trainees. They are asked to write first drafts of letters, reports to insurers, witness statements and to take notes during meetings and conferences with counsel. Trainees need to be personable and able to talk to clients easily, as they attend lots of client meetings, and with their team.
Characteristics and skills professional negligence lawyers need
- Robust enough to make difficult decisions and stick by them.
- Strong in dealing with people at a difficult time in their professional career.
- Empathetic and tactful.
- A good project manager.
- Efficient at juggling different cases for various partners or associates.
Types of law practised
- Commercial conveyancing.
- Commercial property.
SARAH CLOVER is a partner at CLYDE & CO. She graduated with a degree in law from University College London.