Facing a professional negligence complaint? Look to your retainer letter.
If a client relationship has soured and you are faced with a complaint or a claim for professional negligence, what points should you consider and when might you need legal advice?
If you are in this situation, your first move should be to look at your retainer letter, as it is fundamental to determining whether your client's complaints might be well-founded.
The retainer letter sets out clearly from the beginning what you were going to do for your client and is a useful shield when you are later being held to account for why something has not been done or has been done which was not agreed or costed into the project.
Often professional negligence claims have a two-pronged attack for breach of contract and negligence. If a dispute reaches court, the retainer will be the starting point in deciding liability.
Scope of work
The retainer defines the scope of what you were going to do and sets outs functions and responsibilities within the client relationship and should, where possible, be unique to the transaction in hand.
One area for concern may be where responsibility was taken for reviewing advice or work previously given and done, even if not by your business.
The courts have preferred not to infer an implied, overarching general retainer to keep all work which you have done for your client under review. This is because it would be like an insurance policy for the client and too onerous, commercially and professionally for you. A client cannot reasonably expect to be kept informed of anything which might impact upon work previously done and seek redress if they were not – unless you agreed to do this.
For some professionals, such as architects, surveyors or engineers, earlier designs and plans might be kept under review because of an extended liability period and because an earlier design or plan might become problematic or defective because of new practice. If this is your situation, it is advisable to provide for ongoing reviews and consultation with the client at an appropriate fee. It is important that this is agreed at the outset, unless each individual commission is a complete, finalised package.
There may still be a case for negligence if you actually know or become aware that earlier work is or has become in some way deficient. However, there are time constraints so potential liability does not become an indefinite responsibility.
A limitation period applies to any claim but depends on whether it is based in negligence or in contract. This can be tricky and so our advice should be sought.
Standard retainer letters
Did you roll out a standard letter for this client without checking it over for this transaction? Whilst standard wording may be fine, it is best to refine and define the wording to cater for the specifics of the project, including taking into account the client themselves and their capacity to understand what you are agreeing to do for them.
If you are facing a claim and are concerned that a standard letter was not adequate or clear about what you were going to do for the individual client, you should seek legal advice.
As part of a future risk management approach, it would be advisable to check a standard retainer letter through with your legal advisor. This may not help on this occasion but you will be better prepared for next time.
Did you have the expertise to do the work you have undertaken? It is far better to field a client to another then find yourself caught out by taking on a matter which is beyond you.
In a cautionary tale, the surveyors Drivers Jonas were retained to prepare valuations of a development, provide investment advice on the commercial viability of the development, carry out due diligence and negotiate the purchase price and terms of the acquisition. As standard practice, they should have obtained a full retail performance analysis report. They did not and the court found that they did not have the necessary experience or expertise to advise upon the development competently. In taking on the project they acted in breach of duty and were held liable for their advice. They had to pay costly damages of £18.05 million – the difference between the amount their clients paid and what they should have paid, if they had received proper advice.
If a lack of reasonable care has been alleged, expert evidence may be needed to prove or disprove it.
Obtaining expert evidence too early in a case might be disproportionate in terms of costs, but do not be afraid to challenge your client if you think their criticisms are unfounded unless you know independent expert evidence would support the allegations being made.
All professionals want to manage their business, their professional indemnity cover and premiums as cost-effectively as possible. Maintaining good client relations is fundamental to keeping and renewing business but it is unavoidable that, when things go wrong, you are an attractive target for a disgruntled client to recover any losses.
There are alternatives to going to court as a means of settling the dispute, for example mediation which often provides a more cost effective alternative. Our dispute resolution team can explain the alternatives and advise on the best approach for your situation.
If you need professional negligence legal advice you can call 08000 111 303 or fill in the Get in Touch Form to the right of this screen.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice, and the law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.