Professionals owe both contractual duties and a duty of care to their clients. In Ireland, a professional negligence claim arises when a professional breaches the duty of care owed to a client, resulting in loss or damage. Such a breach may occur if the professional fails to fulfil their responsibilities, whether by providing incorrect advice, not following instructions correctly, or making errors in legal documents. It is important to note that claims must be brought within 6 years of the date the breach occurred.
Elements of a Claim
For a professional negligence claim to succeed, a claimant must demonstrate:- The professional owed them a duty of care;
- This duty of care was breached;
- Actual financial loss was suffered because of the breach.
Key Elements of a Professional Negligence Claim
Existence of a Duty of Care
The professional must owe a duty of care to the claimant. This duty arises when the law recognises that one party has a responsibility towards the other. This is established by the existence of a contractual or professional relationship.
Standard of Care
The standard of care expected is that of a reasonably careful member in that profession. In Roche v Peilow[1], the Supreme Court confirmed that compliance with usual professional standards is an important factor when assessing if a professional has met the required standard of care. If a professional can show that they followed what is normally done in their profession, they may not be held liable for professional negligence.
Breach of Duty
The claimant must prove the professional breached the standard of care of a competent practitioner in their field. This is judged against the standards of a reasonable, competent professional in that field.
Causation
In a professional negligence claim, it is not enough to show that the professional just made a mistake. The client must also prove that the professional’s mistake caused the harm. The claimant must prove that, ‘but for’ the professional’s mistake, the loss would not have occurred. If the loss would have happened anyway, the claim will likely fail.
Loss or Damage
The client must have suffered actual reasonably foreseeable harm or financial loss as a direct result of the professional’s conduct. The client must demonstrate that if the professional had not breached the standard of care, the loss or harm would not have happened.
[1] Roche v Peilow [1986] ILRM 189 (SC
Defences
A professional may defend a professional negligence claim by establishing that one or more elements of negligence were absent.
Contributory Negligence
The defence of contributory negligence applies when the client has contributed to their own loss. After suffering a loss, a claimant is expected to act reasonably to mitigate or reduce further harm. Failure to do so can reduce the damages awarded.
The burden of proving that a claimant has failed to take reasonable steps to reduce their losses lies with the professional.
To succeed, the professional must demonstrate:
- The claimant could have taken reasonable steps to reduce the loss;
- The claimant unreasonably failed to do so;
- This failure caused avoidable or additional losses.
This arose in the case of Conway v Irish National Teachers’ Organisation[2], where the court found a failure to mitigate when the claimant, who was dismissed from their job, failed to seek alternative work.
If the professional can prove that the claimant would have acted the same way, regardless of the advice given, their liability may be negated.
[2] Conway v Irish National Teachers’ Organisation [1991] 2 IR 305.
Expert Opinion
Expert opinions are often sought to assess whether the professional met the required standard of care. Experts prepare reports which may be provided as evidence in court, and they may be called to give oral testimony.Alternative Dispute Resolution (ADR)
To avoid costly litigation, professional negligence claims often use ADR methods such as mediation, adjudication and arbitration.Frequent Professional Negligence Claims against Solicitors
Solicitors could find themselves being sued for professional negligence in several instances. Understanding the common pitfalls can assist both clients and solicitors be aware of the risks involved.
Giving Advice
A solicitor may be liable if they give incorrect advice on a clear and established point of law. If the law is more complex, the advice provided may not lead to liability.
Breach of a contractual obligation may give rise to a claim for breach of contract, rather than negligence.
Failing to give advice
Solicitors may be held liable for failing to provide relevant and timely advice, especially when the advice is critical to the client’s decision-making. This also includes failing to make appropriate enquiries that would have revealed important information.
Negligence in Litigation
If a solicitor fails to commence proceedings within the statute of limitations, they may be held liable for professional negligence.
Probate Matters
Many claims arise from mistakes in probate. A solicitor may be held liable for failing to properly administer an estate, or for failing to draft or protect a will. These oversights can lead to delays and financial losses for beneficiaries.
A Solicitor’s Undertaking
Undertakings are a common source of professional negligence claims, and solicitors must exercise extreme care when giving them. An undertaking is a formal promise by a solicitor to another party, often to another solicitor or financial institution, to perform a specific task on behalf of their client. Undertakings include holding funds on trust or discharging a mortgage.
Buying and Selling Property
Conveyancing is a frequent area where professional negligence claims arise. Mistakes such as losing title deeds, failing to advise clients about planning permission or neglecting to register charges on a property with the Land Registry can cause severe financial harm. For example, if a solicitor misplaces the title deeds for a property being sold, the client may experience serious delays or even lose the opportunity to purchase their next home.
If you have any issue as to how professional negligence could affect you or your company, or how future changes will, please do not hesitate to contact Setanta Solicitors (info@setantasolicitors.ie).
Note: This blog post is for information purposes only and does not constitute legal advice.
