When professionals (solicitors, accountants, wealth management advisers, architects, surveyors etc.) fail to perform their responsibilities to the required standard. A claim can arise because of:-
A breach of a contractual term.
A breach of a duty of care.
A breach of a duty arising out of a fiduciary relationship (one built on trust and loyalty) such as the trustee and beneficiary relationship.
When a person instructs a professional, they typically enter into a contract for that service. This contract sets out the express terms that must be complied with.
The retainer also includes terms which are implied by statute. A common implied term is that the service will be carried out by the professional with reasonable care and skill.
Even if there is no written contract, or a task or query falls outside the scope of the retainer, it is possible that a contract has arisen and the terms implied by statute govern the relationship.
If the professional fails to perform their duties in accordance with the express and/or implied terms this could amount to a breach of the contract and thereby give rise to a claim by the customer against the professional.
A professional can also be liable to a customer when they provide a service which falls short of the expected professional standard.
The four basic requirements that must be proved on the balance of probabilities (more likely than not) are that:
The professional owed the client a duty of care not to cause the type of harm that was suffered.
The professional breached that duty.
The breach of duty caused the client to suffer a loss.
The loss that was caused must be recoverable.
The loss must not be too far removed from the circumstances giving rise to the claim.
A professional who has breached their express and/or implied contractual duties is often found to have acted negligently.
Contractual liability and negligence typically go hand in hand but whilst they are often pursued together they may also be pursued in the alternative.
For more information, please contact our property disputes team.
