Professional negligence law: area of practice
Empathy is a key quality for lawyers in this practice area, explains Niya Phiri – a legal director at Clyde & Co LLP.
In the most significant cases, appeals might be made to the Supreme Court. A lot of case law is made in professional negligence cases.
Solicitors in this practice area advise professional services firms in all aspects of risk, this might be in relation to professional negligence claims. Clients can be any entity or individual providing a service that has an advisory element, this includes lawyers, accountants, architects, construction professionals, financial services professionals, directors, officers and IT professionals.
It will often involve also acting for the professional’s insurers, as many professions are required to carry at least a minimum level of professional indemnity insurance by their regulatory bodies. The largest organisations carry significant additional levels of insurance referable to the type of work, risk and client base of their organisations.
The size of the team working on a single case can vary from just one partner, one associate and/or a trainee to 30 people or more. It all depends on the size and complexity of the case. At a City law firm, we can be working on anything from one case, if it’s particularly large, to multiple smaller cases, depending on the nature of the issues and the procedural stage the cases have currently reached.
What does a typical professional negligence case look like?
Lawyers might become involved from the outset of a matter, providing initial advice as to whether there is a case to be made. There is a pre-action protocol for a professional negligence claim, where the claimant writes a letter of claim which is served on the professional. The professional who has been accused of negligence has a period of three months to respond with whether they accept the claim or not. A different pre-action protocol with different timelines applies to construction and engineering disputes.
If the parties cannot resolve the claim through pre-action process, the claimant is free to pursue litigation. The claimant will need to issue proceedings and serve particulars of claim, setting out the case, and if the defendant wishes to dispute the claim, a defence will need to be served. The parties then have a case management conference, where the court sets out a timetable leading to the trial date. Events that can be included in this timetable include disclosure, factual witness statements and, in some cases, expert reports.
At any stage up to trial, the parties are free to try an alternative dispute resolution to try and resolve the case – this could involve a mediation, without prejudice negotiations between solicitors and/or exchanging written offers to settle the claim on specific terms.
In an average case, this cycle can take anything from 18 months to two years, depending on how long the trial is. Cases might be resolved before proceedings are issued, or at another pre-trial for commercial or reputational reasons and/or to avoid additional legal costs being incurred. If a case goes all the way to trial, the parties may apply to appeal the decision. In the most significant cases, appeals might be made to the Supreme Court. A lot of case law is made in professional negligence cases.
What is working life like for a professional negligence lawyers?
At the outset of a professional negligence lawyer’s career, it is likely that they will be more heavily based in the office, but as you become more senior and are involved with more client meetings and business development, you are likely to become more mobile.
Litigation has ebbs and flows, you have set deadlines where certain tasks have to be completed and work will peak around these times. Issues can still arise at short notice or on an urgent basis, but generally it is a more predictable timetable than transactional law. Most days, people will work from around 9.00 am to 6.30 pm.
The work can often be a window into other organisations; we see how they work from the inside, often at potentially difficult times for those organisations and the key individuals involved. Because of this, empathy is a key quality. In solicitors’ professional negligence claims, we also get exposure to lots of different types of law – cases can arise out of property disputes, corporate transactions, employment or matrimonial cases – any practice area!
What will trainee lawyers in a professional negligence department do?
Typical responsibilities for trainees include attending meetings, taking attendance notes, preparing bundles, drafting letters, being involved in pre-action protocol correspondence and disclosure review tasks. Trainees need to have a strong technical understanding of law, as well as being good with other people.
What skills do professional negligence lawyers need?
- Resilience enough to make difficult decisions and stick by them.
- Strength to deal with people at a difficult time in their professional career.
- Empathy and tact.
- Good project management.
- The efficiency to juggle different cases for various partners or associates.
Types of law practiced
- Regulatory codes and related statutory framework.
- Commercial conveyancing.
- Commercial property.
NIYA PHIRI is a legal director in the insurance, financial and professional disputes practice at CLYDE & CO LLP. She graduated with a degree in law from the University of Cambridge.