Avoiding claims for professional negligence

Professionals often attempt to exclude or restrict their liability for negligence by including an exclusion and/or limitation clause in their terms of engagement. To be effective an exclusion clause must be incorporated into the contract between the parties and brought to the attention of the party agreeing to the limitation. So for example if a letter of advice is produced and the only attempt at an exclusion clause is in that letter of advice the professional is unlikely to be able to use the clause as a defence to a claim in negligence.

The clause to be effective must also cover negligent act or omission and it will be strictly construed in this regard (with ambiguities interpreted against the party seeking to rely on the clause). Finally the clause will be subject to the Unfair Contract Terms Act.

The professional dealing with a consumer or on standard terms of business will not be able to exclude or restrict liability arising from negligence unless the clause through which he attempts to do so can satisfy the ‘reasonableness test’.

It is the professional who would need to prove reasonableness. In assessing whether or not a clause is reasonable, the court will take into account factors such as the resources available to the professional to meet the liability in question (rather than to exclude or restrict it) and the ability of the professional to insure itself against the liability.

It is not possible for a professional to exclude or restrict liability for death or personal injury arising from negligence under any circumstances.

Professional negligence claims against solicitors and barristers

Generally speaking a professional negligence claim against a solicitor requires the claimant to show that the solicitor either did or failed to do something that a reasonably competent solicitor would not have done or done. There is a complex body of case law surrounding professional negligence and each case would need to be considered on its merits.

If it can be shown that even if the solicitor had given proper advice to its client, the client would have acted in exactly the same way, the chain of causation will be broken. This will prevent the client from proceeding with a claim in professional negligence. A solicitor is also entitled to rely on professional advice from counsel provided that advice is not obviously and glaringly wrong to someone with that solicitor’s expertise. If the claim relates to a settlement claim, then provided the solicitor gave advice that could be expected of a reasonable and competent lawyer he will not be negligent, even if that advice was relatively conservative or pessimistic.

Until July 2000 it was not possible for a barrister to be sued in professional negligence for public policy reasons. This meant that while claimants might have sued their solicitors for the actions of their barrister it would not have been possible for the solicitors to seek a contribution from the barrister. Ending this immunity made it possible for clients to bring an action against both their solicitor and their barrister and for the liability arising in negligence to be apportioned between them.