logo

Can I Assign my Legal Malpractice Claim?

assignment of professional negligence claim

Published On - December 13, 2015

The short answer as it is often in law is: it depends. There are two recent cases that can help you draw your conclusions.

In Skipper v. Ace Property and Casualty Insurance Co., the South Carolina Supreme answered the following question: “Can a legal malpractice claim be assigned between adversaries in litigation in which the alleged malpractice arose”?   The Court’s answer was “No” for reasons of policy, but assignments of legal malpractice claims can occur in many contexts, not all of which violate the public policy concerns expressed in Skipper, which deals with an assignment between adversaries.

Skipper arose from an accident between Skipper’s vehicle and a logging truck driven by Moors and owned by Specialty Logging. Specialty had a $1 million policy issued by Ace Insurance. After negotiations for a settlement failed, unknown to Ace and its attorneys, Moors, Specialty, and Specialty’s owner (collectively the “Specialty Parties”) agreed to admit liability and to execute a confession of judgment for $4.5 million. The Specialty Parties also agreed to bring a malpractice suit against the attorneys hired by Ace to handle the case (joining Ace as co-defendant), with the Skippers receiving 85-90% of the proceeds of the action. In exchange the Skippers agreed not to execute the judgment so long as the Specialty Parties cooperated in the malpractice action.

The Skippers and the Specialty Parties then brought a legal malpractice suit against the attorneys hired by Ace; the case was removed to federal court. The defendants claimed that the assignment of the malpractice claim to the Skippers was invalid. The District Court certified the question to the South Carolina Supreme Court.

The Court accepted the certification and agreed with the majority of courts that the assignment of the malpractice claim was void as a matter of public policy. The Court gave several policy reasons for its decision:

          First, assignments of legal malpractice claims between adversarial parties pose a risk of collusion: “When an original defendant is essentially relieved of liability, there is little incentive for the consent judgment to reflect the actual loss.” Because the consenting defendant will not have to pay, the parties can agree to artificially inflated damages.

Second, assignment of malpractice claims undermines the relationship between defense attorney and client by creating a conflict between their interests. Defendants can obtain freedom from liability by agreeing to a consent judgment and pursuit of a malpractice claim against their lawyers.

Third, if such assignments were allowed it would result in the parties taking the opposite positions in the malpractice case from the ones they took in the underlying tort action. This divergence arises because a legal malpractice case is a “case within a case.” To win a legal malpractice action the plaintiff must show that the lawyer breached the standard of care and that this breach proximately caused damage. When the malpractice occurs in litigation, the plaintiff must provide that “but for” the lawyer’s negligence the plaintiff would have prevailed in the litigation.

Another decision worth considering is the California Court of Appeals’s White Mountains Reinsurance Company of America v. Borton Petrini, LLP, 164 Cal. Rprt. 3d 912 (Ct. App. 2013), rev. denied Feb.11, 2014.

California has traditionally followed a strict prohibition on assignment of malpractice claims on the ground that a malpractice claim was a “uniquely personal” right. See Goodley v. Wank & Wank, Inc. 133 Cal Rptr. 83 (Cal. Ct. App. 1976). However, in White Mountains the court recognized a narrow exception. In that case Modern Service Insurance Co. had issued an automobile policy with a $100,000 limit. The insured was involved in a serious accident; the victim brought suit and her attorneys served a demand for Modern’s policy limits. Modern informed its claims administrator to direct the Borton firm to accept the offer, but Borton failed to accept the offer by the deadline. A few years later (accident case still pending) Modern was acquired by another insurer, and its name was changed to White Mountains.   White Mountains ultimately settled the accident case for $1.86 million.   White Mountains then brought suit against the Borton firm for malpractice.

The appellate court, reversing the decision of the trial court, found that the malpractice claim could be assigned because on these facts the policy reasons for prohibiting assignment of malpractice claims did not apply:

Specifically, a cause of action for legal malpractice is transferable when (as here) (1) the assignment of the legal malpractice claim is only a small, incidental part of a larger commercial transfer between insurance companies; (2) the larger transfer is of assets, rights, obligations, and liabilities and does not treat the legal malpractice claim as a distinct commodity; (3) the transfer is not to a former adversary; (4) the legal malpractice claim arose under circumstances where the original client insurance company retained the attorney to represent and defend an insured; and (5) the communications between the attorney and the original client insurance company were conducted via a third party claims administrator. Under the circumstances set forth above, the public policy concerns that have been determined in other cases to weigh against the assignment of legal malpractice claims do not arise.

Courts in other jurisdictions have allowed assignment of malpractice claims when the assignment is part of a larger commercial transaction, as in White Mountains . See, e.g., Richter v. Analex Corp., 940 F. Supp. 353 (D.D.C. 1996); St. Luke’s Magic Valley Reg’l Med. Ctr. v. Luciani (In re Order Certifying Question to Idaho Supreme Court) , 293 P.3d 661 (Idaho 2013).

Unlike in Skippper , in White Mountains there is no possibility of collusion, no conflict of interest because the assignment is a separate transaction from the litigation, and no change of positions in litigation. White Mountains and Skipper are consistent because Skipper was limited to assignments “between adversaries in litigation” and the commercial assignment in White Mountains is not between adversaries.

However, a number of other fact patterns (which the White Mountains court highlighted) involving assignments of legal malpractice claims may arise:

  • The assignment of a claim against the attorney is not a legal malpractice claim but some other type of claim such as fraud or breach of fiduciary duty;
  • The assignment is a transfer on the death of the client to a beneficiary of the estate, or perhaps a sale by estate to a third party;
  • The claim is being brought by a trustee in bankruptcy, or the trustee seeks a court-ordered sale of the claim;
  • The claim is being assigned to the owners of an entity as part of a dissolution or other restructuring of an entity;
  • An insurance company as subrogee of its insured is bringing a malpractice claim against the lawyer who represented the insured.

In some or perhaps all of these other fact patterns, an analysis of policy considerations may lead to a different result than in Skipper and White Mountains.

For more information, Nathan M. Crystal .

BLOG CATEGORIES

Our website uses cookies. By continuing to use the site, you agree to our use of these cookies. To learn more about how we use the cookies and how you can manage them, please see our cookies policy.  

Production

  • Advice Centre
  • Commercial litigation
  • Contractual disputes

How to make a professional negligence claim

How to make a professional negligence claim: a guide for businesses.

Every year, businesses across the country appoint professionals to provide specific services to assist the company. Such services could range from engaging a builder to provide decorating services for your offices, to an ongoing relationship with an accountant for financial advice and guidance.

While many of these partnerships will go well, there is always a risk of receiving poor commercial advice or shoddy services. For businesses who feel that they have been badly advised by the professional that they instructed or the advice resulted in a detriment to the business, a professional negligence claim can be made.

In this guide we outline what constitutes professional negligence and how to go about making a professional negligence claim

Click on the link to that section:

What is professional negligence?

The definition of professional negligence and when businesses may be able to make a claim.

  • Who can businesses make a professional negligence claim against?

Learn against whom a claim can be made.

The difference between contract and tort

How to determine your approach depending on whether the issue is a breach of contract or tort

Making a professional negligence claim.

How Giambrone & Partners can help

How our lawyers can assist in making a professional negligence claim.

Professional negligence is the failure of a third-party professional advisor who has been commissioned to undertake a particular assignment, usually under a contractual agreement or set out by common law. and they have failed to act with the duty of care that is reasonably expected of a professional within their sector. Professionals must conduct themselves and provide services to high standards, often defined by their regulatory body and to a level of competence that is held by others in the same profession to be acceptable. If a professional fails to complete their duties or meet the expected standard, they could be deemed to be professionally negligence.

Against whom should a business make a professional negligence claim?

Professional negligence claims can be made against any professional who purports to have expertise and/or skill in a particular service and is contractually bound to provide your business with services to an appropriate standard of care that is reasonably expected and subsequently fails to do so.

Professional negligence claims are often but not exclusively, made against:

  • Legal professionals
  • Financial professionals, such as mortgage brokers, investment brokers or insurance professionals.
  • Accountants, financial advisors and financial analysts.

When making a professional negligence compensation claim, it is important to be sure whether the professional in question has breached the contract or whether tort applies.

A breach of contract means that the obligations agreed between the parties and set out in the contract have not been performed to the standard defined in the contract.

Tort is a civil wrong in common law that causes loss or harm to the complainant and results in legal liability placed on the individual who fails to carry out a service to an acceptable standard and commits a tortious act. The claimant is able to pursue a civil remedy for negligence through the courts which, if successful, can result in damages being paid to the complainant.

As with most contentious issues, the opportunity for alternative dispute resolution (ADR) is available.

When faced with sub-standard professional services to ensure that you are compensated for the failure of service you must make a professional negligence claim. This need not be too challenging with the right guidance and advice on the strength of your case from commercial litigation lawyers .

The following steps are required when making a professional negligence claim:

Assemble relevant documents to support your claim

It is important to obtain all relevant documents required to reinforce your claim from the onset. Including the initial contract that was signed by the professional, reports you have commissioned outlining the financial or other damage arising from the third parties’ professional negligence, documents outlining expected duty of care and any other evidence that a breach of contract or tort has been made. A report outlining the quantum as well as actual evidence of damages and the causation of these damages.

Keep note of management costs

In order to receive full compensation for the damage that has occurred due to professional negligence, contemporaneous notes should be kept of any financial losses relating to managing the consequences of the negligence, making a claim and the cost of remedying the problems that have occurred.

Make a complaint

When you have gathered sufficient evidence to demonstrate that professional negligence has occurred, you can make your complaint. The first step to making your complaint is to seek an expert or specialist commercial litigation lawyer who will be able to guide you through the process of a professional negligence claim, who is able to assess the body of evidence you have amassed relating to your complaint.

Send letter of claim through your appointed law firm

A letter of claim can be issued and sent to the professional against whom you believe you have a claim. The professional will have three months in which to respond to your letter of claim with their reply.

Consider whether the matter can be resolved out of court

Some professional negligence cases will have to go through court proceedings, however, in some circumstances, it may be possible to manage your claim using alternative dispute resolution (ADR) which provides an alternative method for resolving contentious disputes by negotiation between the parties in the presence of an impartial arbitrator or mediator, this can be a faster method of bringing resolution to the dispute.

Giambrone & Partners’ expert commercial litigation lawyers have represented commercial clients around the globe to ensure that disputes are settled as quickly as possible. Using ADR can minimize the disruption that a professional negligence dispute can cause.

Lawyer with clients in his office

If all avenues of ADR have proved to be unsuccessful, the matter will have to be settled through the court process. A professional negligence court case can be a long and drawn-out process but not in every case, it will depend on the merits of your claim and the nature of the defence.

If your matter does appear before a court it will most probably be heard in relatively recently launched Business and Property Courts (B&PCs) which became operational on 2nd October 2017. They provide a single “umbrella” for specialist civil jurisdictions across England and Wales. In London, these specialist civil jurisdictions operate together in the Rolls Building on Fetter Lane, forming the largest specialist centre for financial, business and property litigation in the world. There are other B&PC courts at other locations around England and Wales.

When all of the evidence has been presented a decision will be made and the judge will make the final order if your claim has been proved.

At Giambrone  & Partners, we provide our clients with an efficient and expert legal service to assist you in building your case for receiving the compensation you deserve in the most cost-effective manner. Our experienced litigation and dispute resolution lawyers will provide you with guidance and legal advice to help you achieve the desired outcome.

To find out more about how we could help you, contact our professional negligence team today.

  • Gran Canaria
  • Insurance Journal
  • Insurance Journal TV
  • Academy of Insurance
  • MyNewMarkets.com
  • Carrier Management

Claims Journal - Insurance news and resources for claims adjusters

Featured Stories

  • Bayer’s Roundup Losses Include $2.25B Philadelphia Verdict
  • Australia Set for Another Cyclone Hit After Storm Forms in North
  • Hackers Exploit Ad Tools to Track Victims, Boosting Scam Efforts
  • SoCal Topped Wheel and Tire Claims for Second Straight Quarter

Claims For P/C Broker Negligence Assignable and Enforcement by Assignee Doesn’t Depend Upon Superior Equities

A California intermediate appellate court has reaffirmed that a client’s professional negligence claim against his or her property/casualty insurance broker is freely assignable. It held, also, that the assigned rights are enforceable in court by the assignee without proof that its “equities” – the justice of its position – are superior to the broker’s, unless the assignee, as insurer, paid the assignor’s loss under its insurance policy, thereby invoking the doctrine of equitable subrogation. The decision, filed by the court on February 8, 2016 is entitled AMCO Insurance Company v. All Solutions Insurance Agency, LLC . It is reported at 2016 Cal.App. LEXIS 96.

The case arose from events occurring in Sonora, a California town located in the western Sierra Nevada foothills. Insurer AMCO, one of the plaintiffs in the case, insured commercial property of one David Saari. The other plaintiffs were individuals (called the “Restauranteurs” by the court) who owned and operated a restaurant on the same street as Saari’s property. Amarjit Singh owned a third building on the street. Due to Singh’s negligence, a fire started in his electrical panel and spread to the other two properties.

Defendant All Solutions Insurance Agency (“All Solutions”) was Singh’s insurance broker. Singh presented to his former insurer his own building loss claim and the third party liability claims for fire damage asserted against him by Saari and the Restauranteurs. The claims were denied because Singh had no policy in force at the time of the fire. Singh contended this was because All Solutions failed to carry out his request that the broker replace his insurance, which had been non-renewed by the insurer before the fire. The broker disputed that Singh requested it to obtain property or liability insurance for his property.

The Restauranteurs sued Singh for the property and business losses they sustained from the fire. Singh stipulated to a judgment in their favor and assigned to them his rights against All Solutions for failing to obtain replacement insurance.

Under its policy, AMCO compensated Saari for his fire loss and filed a subrogation action against Singh to recover what it had paid. Singh stipulated to a judgment for AMCO for the amount it had paid Saari, and Singh assigned to AMCO, too, his rights against broker All Solutions for its failure to obtain insurance for Singh. Based on their status as assignees of Singh, the Restauranteurs and AMCO filed two separate lawsuits against All Solutions. The cases were consolidated.

The broker, as defendant, moved for summary judgment against all plaintiffs in both cases, contending that Singh’s professional negligence claim against All Solutions was not assignable. Alternatively, the broker argued, enforcement of the broker negligence claim in plaintiffs’ hands as assignees was precluded based on the principles of equitable subrogation because the assignees’ “equities” were not superior to the broker’s.

The trial judge granted summary judgment for the broker against all plaintiffs, based on a 2011 California Court of Appeal decision, because their losses were caused by the fire, not by the broker’s failure to insure Singh. Consequently, the trial court ruled, the plaintiffs’ “equities” were not superior to those of the broker. The trial court did not address the non-assignability argument.

The Court of Appeal reversed all summary judgments. Based on a 1984 California Court of Appeal decision, and two California statutes originating in 1872, it held that California law does not prohibit the assignment of a client’s right to sue his or her insurance broker or agent for professional negligence. In this regard, it distinguished cases holding that legal malpractice claims are not assignable because of the fiduciary nature of the attorney-client relationship, and no such relationship exists in the insurance broker context.

Furthermore, the Court of Appeal rejected the broker’s argument that in order to prevail in their lawsuits against the broker, the Restauranteurs and AMCO must proceed by way of equitable subrogation, proving their equities were superior to those of All Solutions. In this regard, the Court found that the doctrine of equitable subrogation did not apply to any of the plaintiffs in the case, because the relationships among the parties did not trigger, by operation of law, a transfer to plaintiffs of the rights against the broker. The only basis on which the plaintiffs could assert the claims of Singh against his broker was by way of voluntary, contractual assignment of those rights to the plaintiffs. At no time were the Restauranteurs an insurer or surety of Singh’s losses, so they never became equitable subrogees of such losses.

AMCO, as Saari’s insurer, was an equitable subrogee, but only of Saari’s claims against Singh, whose negligence caused the fire. AMCO was not an equitable subrogee of Singh’s professional negligence claim against the broker. Therefore, the appellate court concluded, the principles of equitable subrogation that would govern AMCO’s relationship with Saari did not extend to Singh’s contractual assignment of his cause of action against broker All Solutions. Accordingly, AMCO, too, need not establish a superior equitable position to the broker in order to prevail against it on Singh’s assigned claim against the broker for professional negligence.

Going further, the Court of Appeal held that as an alternate and separate ground for reversing the summary judgment against AMCO, even if superior equities were required for AMCO to succeed in its case against All Solutions, as the moving party on summary judgment, the broker failed to establish that its equitable position was equal or superior to AMCO’s.

About Richard Wolf

Was this article valuable?

Thank you! Please tell us what we can do to improve this article.

Thank you! % of people found this article valuable. Please tell us what you liked about it.

Here are more articles you may enjoy.

assignment of professional negligence claim

Want to stay up to date?

Get the latest insurance news sent straight to your inbox.

  • Categories: West News , Wolf Bites Topics: insurance broker sued , professional negligence claim , Richard Wolf , Wolf Bites
  • Have a news tip? Email us at [email protected]

We have updated our privacy policy to be more clear and meet the new requirements of the GDPR. By continuing to use our site, you accept our revised Privacy Policy .

Compensation for professional negligence: What can I recover?

In this substantive guide, we identify and explain the different types of loss and damage that are commonly awarded by the courts in claims for compensation for professional negligence.

Although this guide is of significant length, we have numbered each head of compensation below and addressed it separately. This should make the guide easier to navigate and remove the need for it to be read in its entirety, unless so desired. For each head of compensation, and to provide additional insight and context, we have also given a real-life case example.

For anyone considering making a claim for the first time, we have produced a separate introductory guide to professional negligence claims. This contains answers to a number of the practical questions we frequently get asked, as well as links to further information. The guide is accessible here .

General principles of compensation

The aim of an award of compensation (commonly in the form of ‘damages’) is not to punish the professional concerned, but to compensate the injured party, typically the client. A classic formulation of the principle can be found in the historic judgment of Lord Blackburn in Livingstone v Rawyards Coal Co. , where he stated that the measure of damages is:

‘…that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.’

Over the years various legal rules and principles have been established by the courts to ensure that the compensation awarded to clients, and the corresponding financial exposure of professionals, is kept within sensible bounds. These are relatively complicated, not only in themselves but also in terms of their application, and a detailed examination of them is beyond the remit of this guide. However, in summary, it should be noted that:

  • Not all financial losses suffered will necessarily be recoverable as compensation for professional negligence;
  • In some cases, there can be an element of uncertainty as to both the type and amount of compensation that the court will ultimately award in a successful claim for professional negligence; and
  • For loss or damage to be recoverable as compensation for professional negligence, it will generally need to fall within the scope of the professional’s retainer and be caused (both as a matter of fact and law) by the mistake made by the professional.

Against this background, we set out below common categories of loss and damage that have been awarded by the courts in claims for compensation for professional negligence.

1.  Compensation for loss of chance

Compensation claims for the loss of a chance are relatively common in professional negligence claims. They arise where the injured party has, through the mistake of a professional adviser, been prevented from securing a financial gain (or avoiding a liability) which itself was contingent upon the actions of a third party. Where such claims are successful, the court will award as damages such percentage of the loss suffered as reflects the chance that the claimant otherwise had of securing the gain (or avoiding the liability).

Case example: Wellesley Partners LLP v Withers LLP

In Wellesley the claimant was an executive search firm, operating in the investment banking sector. In 2007 and with a view to expansion, it instructed the defendant firm of solicitors to draft a contract to sell 25% of its shares to Addax, a Middle Eastern bank, for £2.5m.

When preparing the contract and contrary to its instructions, the defendant altered a clause so as to give Addax the option to request the return of 50% of its investment within 41 weeks. When Addax later exercised the option, the claimant suffered financial hardship. In turn, this prevented the claimant from opening an office in the US and tendering for a lucrative recruitment appointment.

At trial, the judge concluded that there was a 60% chance that the claimant would have secured the recruitment appointment. He further concluded that there was a 25% chance that the appointment would have been an exclusive one and a 75% chance that it would have been a shared appointment. This meant that the overall chance of the claimant securing the net profit from an exclusive appointment was 15% and the overall chance of securing the net profit from a shared appointment was 45%. Against projected profits of £3,262,551 and £1,262,016 respectively, this produced compensation awards of £489,383 and £567,907 (being £1,057,290 combined) for loss of chance.

2.  Compensation for diminution in value

Damages awards for the reduction in the value of property are extremely common in, but not exclusive to, professional negligence claims against surveyors. Here, the court will award as damages the difference between the price paid for the property (assuming that represents its market value, free of defects) and its actual market value taking into account the defects which the negligent professional failed to identify.

Case example: Watts v Morrow

In Watts the claimants had instructed the defendant building surveyor to provide a full structural report on a house they were intending to purchase. While the report had not identified any significant defects, following the purchase, the claimants subsequently discovered that extensive remedial work to the property was required. The claimants then commenced a professional negligence claim against the defendant, alleging that had they known of the unreported defects, they would not have purchased the house or would have negotiated a lower purchase price.

On appeal, the court held that the appropriate measure of damages was £15,000 plus interest, representing the difference between the price paid for the property and its true value, having regard to the unreported defects. It therefore set aside the higher award of damages of £33,961 originally made by the court below, which represented the costs incurred by the claimants in rectifying those defects which should have been, but were not, reported.

3.  Compensation for wasted expenditure

In claims against solicitors, the assessment of loss can be less predictable than in the case of claims against surveyors. In some instances, where, for example, a party extricates itself from a disastrous transaction brought about by professional negligence, the court may award as damages the reasonable costs incurred by a party in both entering into and exiting such a transaction.

Case example: Hayes & Another v James & Charles Dodd (a firm)

In Hayes the claimants ran a motor repair business, which they wished to expand. They instructed the defendant firm of solicitors to act for them on the purchase of a lease of a workshop and yard, which the defendant advised them enjoyed a right of way over land at the rear of the property.

In the event, no such right existed. As a result, the claimants were unable to operate the business, which they were forced to close after 12 months.

On appeal, the court confirmed that the claimants were entitled to recover as compensation the wasted costs that they had incurred in entering into and then extricating themselves from the transaction. These included the purchase price and rent paid, the loss of goodwill, bank interest, travel expenses and conveyancing costs. This produced a total award of £102,447.81 inclusive of interest.

4.  Compensation for additional legal costs

As a consequence of a mistake made by a professional, a client may find themselves embroiled in litigation with another party. Alternatively, a client may embark on litigation against another party in an effort to mitigate the losses that he or she would otherwise incur. In either case, the additional costs incurred may then be awarded as damages against the negligent professional.

Case example: Hermann v Withers LLP

In Hermann the claimants had instructed the defendant firm of solicitors to act for them on the purchase of a residential property in London for £6.8m. While the solicitors had advised that the property included a right to use a communal garden in a square close to the property, in actual fact, no such right existed.

In a subsequent claim for professional negligence against the defendant, the court considered that the advice it had given had been negligent and it awarded damages under various heads of loss. These included the costs that the claimants had incurred in obtaining independent legal advice as to the existence of any right to use the garden and in negotiating the purchase of such a right. These costs totalled £55,906.28 and were to be assessed on an indemnity basis.

5.  Compensation for lost management and staff time

In commercial claims, and particularly in claims against construction professionals, it is not uncommon for a considerable amount of additional management and staff time to have been expended. This may arise either from dealing with the practical effects of negligent conduct or advice, or in seeking to mitigate the financial losses that flow from such conduct or advice. The courts are alive to the costs associated with this and, in appropriate circumstances, will compensate a business with an award of damages.

Case example: R+V Versicherung AG v Risk Insurance and Reinsurance Solutions SA & Others

In R+V Versicherung the claimant was a German reinsurance company whose chief underwriter had dishonestly conspired with a representative of the defendant insurance broker. The aim of the conspiracy was to deprive the claimant of significant premium income, which was generated under two binder agreements covering short tail property and contingent risks and personal accident risks.

Having found against the defendant on liability, one of the issues for the court to consider in determining the amount of compensation payable was whether the claimant was entitled to recover as damages internal management and staff time, except to the extent that the claimant could prove that it had suffered a loss of profits.

Finding against the defendant again, the court held that wasted management and staff time spent on the investigation and/or mitigation of the defendant’s wrongdoing was recoverable, notwithstanding that no additional expenditure or loss of revenue or profit could be shown. It also held that the claimant could recover as damages its additional staff costs of handling insurance claims arising from the business written under the two binders.

6.  Compensation for loss of profit / income

Where the purpose of a commercial transaction is to generate profit and where that intention is well known to the professional at the time of acting or advising in connection with it, the courts have been prepared to award any subsequent loss of profit or income as compensation for professional negligence.

Case example: Keydon Estates Ltd v Eversheds LLP

In Keydon Estates the claimant was a small property investment company who had instructed the defendant firm of solicitors to act for it on the purchase of the freehold of a commercial office building known as Willow House.

As the defendant knew, the purchase was intended as an investment and therefore the existing tenant’s covenant to pay rent was of the utmost importance. However, following the purchase, the tenant refused to pay rent on the valid grounds that it had assigned its lease as a result of previously granting a sub-lease.

The defendant having admitted negligence, the issue for the court to decide was the appropriate measure of compensation. Here, the court concluded that damages should not to be assessed on the lower basis of diminution in value (as to which, see above) but on the higher basis of the alternative income stream that the claimant would have enjoyed from a comparable property with the desired level of income security.

7.  Compensation for mental distress

While damages awards for mental distress are made by the courts in professional negligence claims, they are not as common as some other awards. Generally, such awards will only be made where either (i) one of the main objects of the professional’s retainer was to provide pleasure, relaxation, peace of mind or freedom from molestation; or (ii) the distress was accompanied by physical inconvenience.

Case example: Farley v Skinner

In Farley the claimant was interested in purchasing a residential property for his retirement. He instructed the defendant surveyor to inspect the property and to ascertain, amongst other matters, whether it was seriously affected by aircraft noise from a nearby airport.

While the surveyor reported that the property was not so affected, after purchasing and moving into the property, the claimant discovered that it was. Having decided to remain in the property, the claimant then brought an action against the surveyor, seeking compensation for professional negligence.

On appeal the court held that to recover damages for mental distress, it was sufficient that a major or important object of the defendant’s retainer had been to give pleasure, relaxation or peace of mind. It therefore restored the damages award of £10,000 originally made by the judge in the court below.

8.  Compensation for physical inconvenience

While awards have been relatively modest the courts have, for some time now, been prepared to compensate individuals for the physical inconvenience and discomfort that they have suffered as a result of professional negligence.

Case example: Wapshott & Another v Davis Donovan & Co (A Firm)

In Wapshott the claimants had instructed the defendant firm of solicitors on the purchase of a small leasehold flat. Two years after the purchase and following the birth of their first child, the claimants decided to sell the flat in order to move to larger accommodation. However, at this point they discovered that the flat had been built on land belong to the neighbouring house, which rendered the flat unsaleable.

At first instance, the court held that the defendant had been negligent and that the claimants were entitled to recover as damages the price that they had paid for the flat. Nevertheless, the court declined to award anything in respect of the physical inconvenience that the claimants had suffered as a result of having to bring up a growing family in the confines of a single bedroom flat.

On appeal, however, the court held that such inconvenience was a foreseeable consequence of the solicitors’ mistake and that it could see no reason of policy on which the law would refuse compensation or recovery. It therefore awarded the claimants additional damages of £3,000 each.

9.  Compensation for pain, suffering and loss of amenity

When professional negligence occurs, it is relatively rare that it will result in physical injury to a person. Therefore, it is not often appropriate to claim or award as compensation for professional negligence, damages for physical pain, suffering and loss of enjoyment of life, which are more usually associated with actions for personal injury. However, such awards can and do occur.

Case example: Malyon v Lawrence Messer & Co

In Malyon the claimant was injured in a road traffic accident in Germany. While he instructed solicitors in England to pursue a claim for compensation on his behalf, the solicitors were slow to act and eventually his claim became time-barred. This prevented him from pursuing it further. The claimant then commenced a claim for compensation for professional negligence against the defendants.

At trial the court accepted that the claimant had been suffering from an anxiety syndrome related to his personal injury claim, that the solicitors had known of the syndrome and that it would probably abate as soon as the litigation was concluded. It therefore determined that the solicitors were liable to pay damages for pain, suffering and loss of amenity in respect of the additional period the claimant had suffered the anxiety syndrome due to their delay.

10.  Compensation for cost of reinstatement / cure

In claims against construction professionals, and where defects arise as a result of negligence in the design, execution and/or supervision of a project or scheme, the primary head of compensation will often be for the costs incurred in curing those defects, through rectification or reinstatement works.

However, and while less common, such compensation has also been awarded in claims against other types of professionals, where pre-existing defects in relation to property have been missed prior to purchase.

Case example: Harbutt’s Plasticine Ltd v Wayne Tank and Pump Co Ltd

In Harbutt the claimant was a manufacturer of crayons and chalks. It appointed the defendant to design and install equipment in its factory for storing and dispensing a heavy wax, which had to be liquefied under heat for the manufacturing process. However, as a result of the defendant’s negligence, both in designing and installing a heating system, a fire broke out which caused damage to the claimant’s factory buildings, plant and machinery and stock.

The claimant was insured for the fire and promptly set about rebuilding the factory, albeit to a permitted design specification that was different (but overall no larger) than the original factory. It also commenced a claim for compensation for professional negligence against the defendant.

On appeal, the court confirmed that the appropriate measure of compensation was not the difference between the value of the claimant’s buildings, stock and plant before and after the fire (ie diminution in value) as the defendant had advocated. Rather, the claimant was entitled to recover the costs of replacing the factory, plant, machinery and stock, notwithstanding that in doing so it received ‘new for old’ and, to that extent, an element of betterment.

As the above case examples should demonstrate, in professional negligence claims compensation can be recovered for a variety of different types of loss. While some of these losses can be recovered simultaneously, others cannot, particularly if this would result in ‘double’ recovery.

While the courts have favoured certain approaches in particular types of claims, what type of compensation can and cannot be recovered will often depend on the circumstances of the particular case and the task that the professional was required to undertake.

Further legal assistance

As professional negligence solicitors , we act for clients nationwide to resolve claims against a wide range of professionals.

If you would like to arrange an initial consultation with us, free of charge or commitment, please do not hesitate to contact us on 0800 195 4983 or by email at [email protected] .

At PNC Legal there is much more than just the fact that we specialise exclusively in resolving claims for professional negligence that sets us apart from most other solicitors.

Related Insights

Claim for professional negligence: your key questions answered, professional negligence claims – do i need a solicitor, the duty to mitigate loss in professional negligence claims.

Get in touch

Jonathan Watmough

Professional Negligence Solicitor

  • Professional Staff
  • Denver Divorce & Family Law
  • Child Custody & Parenting Time
  • Child Support
  • Maintenance, Alimony & Spousal Support
  • Modification & Enforcement
  • Mediation Services
  • Collaborative Divorce
  • Grandparent Rights
  • Pre & Postnuptial Agreements
  • Protection & Restraining Orders
  • Business & Commercial Litigation
  • Real Estate Disputes
  • Insurance Disputes
  • Construction Defects
  • Partnership Disputes
  • Domestic & Intentional Torts
  • Civil Partition Actions
  • Mechanics Lien Guide
  • Our Founders
  • Civil Litigation
  • Divorce Guide
  • Resource Center
  • Blog / Articles

4 Elements of a Negligence Claim (and more)

Under Colorado law, there are four elements to a claim for negligence:

  • The existence of a legal duty to the plaintiff;
  • The defendant breached that duty;
  • The plaintiff was injured; and,
  • The defendant’s breach of duty caused the injury.

Raleigh v. Performance Plumbing & Heating , 130 P.3d 1011, 1015 (Colo. 2006). For a plaintiff to succeed at trial, each element must be proven by a preponderance of the evidence (more likely than not) and then the plaintiff must prove the amount of their damages.

Read on to learn all about the elements of negligence as well as related issues like foreseeability, reasonableness, and the “standard of care.”

4 Elements of Negligence

In plain terms, the “duty” element requires that the defendant owe a legal duty to the plaintiff. For example, you generally do not owe a duty to be friendly to others; however, you do owe a duty to act with reasonable care so that you do not physically injure others.

(2) Causation

The “causation” element generally relates to whether the defendant’s actions hurt the plaintiff. Many times, it is not clear about who or what injured the plaintiff. Sometimes it is clear that the defendant injured the plaintiff, but it is not all that clear that the plaintiff’s injuries were caused by the defendant.

Breach is simple to explain but difficult to prove. If the defendant owed a duty and did not fulfill that duty, then he or she is in breach.

(4) Damages

Finally, the element of “damages” concerns the amount of monetary loss the plaintiff has suffered. This element is almost always in dispute with defendants arguing that the plaintiff suffered no injury or suffered minor injuries and the plaintiff arguing the opposite.

Basic & Useful Definitions

  • What is negligence? Negligence is when a person falls “below the standard of care” by failing to act in the way that a “reasonably prudent person would” under the “same or similar circumstances.” In general terms, negligence is when a person falls below the standard that society determines to be “reasonable” under the circumstances.
  • The dictionary that attorneys use to define terms, Black’s Law Dictionary, defines negligence as “the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation.”
  • What is gross negligence? The term “gross negligence,” is a type of negligence where the defendant lacks “even slight diligence or care.” 
  • In some instances, the law will  presume  that someone is negligent under certain circumstances. This is called “negligence per se” and is defined as “negligence established as a matter of law,” or negligence arising “from a statutory violation.”
  • What is the “standard of care?” The standard of care is the “degree” of care that a person should exercise. Some situations call for higher or lower standards of care, depending on the circumstances. 
  • What is the difference between negligence and torts? Negligence is the primary and most-well-known claim related to an area of law called “tort law.” Tort law is the type of law and negligence is a type of legal claim or cause of action. In law school, one of the very first classes that any student will take is called “torts.” Other tort claims include battery, assault, negligent/intentional infliction of emotional distress, fraud, misrepresentation, and many others.

Contributory and Comparative Negligence

When a plaintiff asserting a claim for negligence is  also  negligent themselves, the law refers to this as “contributory negligence” or “comparative negligence.”

  • What is contributory negligence? “Contributory negligence” is defined as a “plaintiff’s own negligence that played a part in causing the plaintiff’s injury and that is significant enough (in a few jurisdictions) to bar the plaintiff from recovering damages.”
  • What is comparative negligence? Comparative negligence is defined as a “plaintiff’s own negligence that proportionally reduces the damages recoverable from a defendant.”

Many cases involve some level of contributory or comparitive negligence as it is common for defendants to argue that the plaintiff brought the injuries upon themselves or acted in a way that made the harm more likely.

What is “Reasonable Care?”

What about foreseeability is it a requirement.

A defendant is only liable for negligence if their actions resulted in a “foreseeable” injury. Under Colorado law, an injury is foreseeable “if a reasonably careful person, under the same or similar circumstances, would have anticipated that injury to a person in the plaintiff’s situation might result from the defendant’s conduct.” It is not the precise injury that the plaintiff suffered that needs to be foreseeable, it is enough that  an  injury is foreseeable. In law school, students often study a case called Palsgraf v. Long Island Railroad Co. , which is a case out of New York that was the first to thoroughly analyze what sorts of things are foreseeable or unforeseeable. The same principles discussed in this case are still used today in Colorado. For example, the Colorado Court of Appeals recently cited  Palsgraf  in a 2015 decision, noting that it is “the seminal tort case”:

The seminal tort case of Palsgraf v. Long Island Railroad Company , 248 N.Y. 339, 162 N.E. 99, 101 (1928), similarly holds that liability for negligence is limited to reasonably foreseeable injuries: “[i]f the harm was not willful, [the plaintiff] must show that the act as to him [or her] had possibilities of danger so many and apparent as to entitle him [or her] to be protected against the doing of it.” Because in Palsgraf “[n]othing in the situation gave notice” that the actor’s conduct “had in it the potency of peril to persons” in the plaintiff’s position, the plaintiff could not recover for injuries she suffered that had resulted from the chain of events initiated by the actor’s conduct. Id. at 99.

Damages Arising from Negligence Claims

A plaintiff alleging a negligence claim is entitled to “compensatory damages.” compensatory damages include the amount of money that it takes to make the plaintiff “whole” – i.e. to remedy or fix the damage caused by the defendant’s conduct. sometimes calculating what it takes to correct a wrong is easy and other times it is an impossibly difficult task. however, colorado juries are specifically instructed that “difficulty or uncertainty in determining the precise amount of any damages does not prevent you from deciding an amount” and that the jury “should use its best judgment based on the evidence.” see, e.g., colo. jury instr., civil 5:6. plaintiffs may also be entitled to other types of damages such as punitive damages; however, those sorts of damages are rarer., what is the statute of limitations for negligence claims.

The statute of limitations for negligence claims in Colorado is  two years .  See  C.R.S. § 13-80-102(1); see also  Morrison v. Goff , 91 P.3d 1050, 1053 (Colo. 2004) (“In Colorado, the statute of limitations bars negligence actions brought more than two years after the action accrues.”). “To determine when an action accrues, the General Assembly has adopted a form of the ‘discovery rule,’ which states that an action accrues ‘on the date both the injury and its cause are known or should have been known by the exercise of reasonable diligence .’”  Goff,  91 P.3d at 1053 (emphasis added); see also  C.R.S. § 13-80-108(1).

Learn all about the elements of claims for unjust enrichment and breach of contract.

Schedule a Consultation

" * " indicates required fields

The Legal Examiner Affiliate Network

Arizona Supreme Court Holds Professional Negligence Against Insurance Agent is Assignable

  • Share story on Facebook
  • Share story on Twitter
  • Share story on LinkedIn
  • Share story via email

Surprising result in Webb v. Gittlen , a new opinion from the Arizona Supreme Court which holds that a professional negligence claim against an insurance agent is assignable. Although a long overdue holding, it highlights the badly misunderstood law concerning assignments, including the scope and justification of anti-assignment law (see my earlier article on Assignments vs. Liens in the Personal Injury Context ).

To be sure, how many modern opinions rely upon 400-year old case law from “Lord Coke”? This one does.

The opinion is a actually a good read in that the Supreme Court takes us through centuries of anti-assignment history and jurisprudence, neatly summarizing Arizona law on this issue as follows:

The current principles under Arizona law for determining if an unliquidated claim may be assigned can be summarized as follows: (1) claims generally are assignable except those involving personal injury; (2) the legislature may specify whether particular claims are assignable; and (3) absent legislative direction, public policy considerations should guide courts in determining whether to depart from the general rule.

The Court then turned to the case at issue and, without specifically saying so, seemed to accept that a claim against an insurance agent — relating to a wrongful death claim — does not “involve a personal injury.” While I think this is clearly correct, it is surprising how often the issue gets ignored or taken for granted — namely, what constitutes an unlawful assignment of a personal injury claim?

For example, is a medical lien an unlawful assignment of a personal injury claims? Why not? Since most personal injury attorneys encounter these every day, wouldn’t it make sense to know whether they are valid and why? Well, this opinion may shed some light on the issue where Court stated as follows:

Arizona case law generally allows the assignment of unliquidated legal claims except those involving personal injury. This distinction reflects the evolution of the common law, which once held that “choses in action” could not be assigned, except to the crown. Welch v. Mandeville , 14 U.S. (1 Wheat.) 233, 237 n.a (1816). A legal claim is one type of “chose in action,” but the concept also encompasses “ debts of all kinds ” and “rights to recover ownership or possession of real or personal property.”

While not the focus of the opinion, the Court’s discussion of the affirmative assignably of “legal claims” and “debts of all kinds” is important. For instance, even though a medical lien creates an interest in a person’s bodily injury recovery, maybe it is a valid “legal claim” since it covers a “debt.” But if you think this is a slam-dunk, consider what the same Court said in Allstate Ins. Co. v. Druke , 118 Ariz. 301, 576 P.2d 489 (1978):

Whatever the form, whatever the label, whatever the theory, the result is the same. The [documents] create an interest in any recovery against a third party for bodily injury. Such an arrangement, if made or contracted for prior to settlement or judgment, is the legal equivalent of an assignment and therefore unenforceable.

Id. at 304, 576 P.2d at 492; Lo Piano v. Hunter , 173 Ariz. 172, 175-76, 840 P.2d 1037, 1040-43 (App. 1992) (holding that reimbursement provision was an unenforceable assignment of a personal injury claim). So it is still up in the air whether such assignments are valid.

Anyway, the substantive thrust of the Court’s holding was to explain the difference between assignments of legal malpractice claims and professional negligence claims against insurance agents . Without holding whether legal malpractice claims were assignable, the Court went on to “assume they are not” and distinguished the attorney-client relationship with the insurance agent-client relationship, essentially saying that the later was of a lesser duty ( i.e., generally not a fiduciary, which was a bit of a surprise to me) and drawing on other differences (without saying why the differences made a difference by the way). The Court just concluded that the relationship with an insurance agent was not “uniquely personal” to justify making claims against an insurance agent non-assignable.

Next, the Court addressed public policy arguments. Surely, the best line in this section is the following refreshing dose of common sense to the argument that allowing such assignments would “commercialize” the insurer-client relationship: “Although the agent-client relationship has personal dimensions, it arises from a commercial transaction – the purchase of insurance. It is therefore odd to suggest that it should not be commercialized.” This, of course, begs the question — isn’t the relationship between an attorney and client commercial? That is, it involves the commercial exchange of money for services, so why should it get any different treatment?

It is probably too much to hope for, namely — the complete abolition of anti-assignment law — and even though it sometimes helps our clients in the lien context, it has always seemed unnecessarily paternalistic and outdated to me, especially the nonsense about “trafficking in personal injury claims.” Still, it was nice to see the Court tip its hat, in footnote 3, to commentators “who advocate allowing assignment of all tort claims.”

In fact, the Court alluded to the inconsistent and strange genesis of the non-assignablity issue, noting that “[a]s courts became more accessible and litigation a more accepted means for resolving disputes, the prohibition on assignment gradually became the exception rather than the rule.” The Court explained that the rationale behind the “exception” of prohibiting assignment of personal injury claims was basically tied to the idea that the claims were “personal” and did not survive death, therefore, they could not be assigned during the person’s lifetime. But the Court observed:

This “survivability” test did not itself survive in Arizona after 1955, when the legislature enacted a [now amended] statute providing for the survival of most causes of action, including personal injury claims. Although this statute undermined one rationale for refusing to allow the assignment of personal injury claims, courts did not abolish the rule. Instead, they resurrected the common law public policy rationale – fear of vexatious litigation.

In other words, the reason we still have non-assignment law today is simply a function of judicial activism from 50 years ago. So it’s possible that, one day, courts will see it differently — afterall, who would have thought the Court would permit assignment of a claim against an insurance agent, but not a lawyer?

The Legal Examiner

The Legal Examiner

The Legal Examiner and our Affiliate Network strive to be the place you look to for news, context, and more, wherever your life intersects with the law.

Comments for this article are closed.

From Our Newsroom

American flag waving with the US Capitol Hill in the background

Big Tech and Lawmakers Struggle with Section 230

The 50 yard line of Cowboys Stadium in Arlington, Texas

Is the NFL Brain Injury Settlement Helping Players?

3D rendering of hip replacement details with realistic-looking bones

Current Defective Hip Implant Lawsuits

Photo of the Agency for Toxic Substances and Disease Registry (ATSDR) homepage on a monitor screen through a magnifying glass.

New Study Shows Higher Rate of Cancer at Camp Lejeune

Recent articles.

elderly woman pedestrian being assisted crossing the street with motion blur automobiles approaching

Man Killed in Hit-and-Run Pedestrian Accident on Highway 41 in Coarsegold

Patient examination table in a doctors office.

Physician’s Assistant, Harold Thomas Frank, Accused of Sexual Assaulting a Innovative Pain Treatment Solutions Clinic Patient During an Exam

blurred empty elementary school classroom with sunlight shining in

Durham After-School Program Worker, Oscar D. Reyes, Facing Multiple Charges Including Child Sexual Battery

Red and blue lights on top of a police car illuminate the night

Solo-Vehicle Crash at Southport Pkwy and Ramco St Leaves One Dead

Popular on our affiliate network.

firefighters and paramedics tending to an injured person on stretcher after an overturned vehicle accident

Three-Vehicle T-Bone Crash on Fair Oaks Blvd, Shelfield Dr Leaves 1 Dead, 3 Injured

Bibles in wooden bench compartment in church

Tragic Incident at Joel Osteen’s Lakewood Church: Woman Fatally Shot After Opening Fire, Two Others Injured

suv pinned under the front of a semi truck after an accident

Polk County Woman Killed in Head-on Collision With Semi – Semi-Truck Driver Arrested For DUI

Closeup of Police Lights on Dark Street at Night

Hwy 198 and Hwy 99 in Visalia Sees Two-Vehicle Crash; Investigations On-going

assignment of professional negligence claim

{ Banner Image }

  • Professional Liability

In   Clark v. Stover , the   Supreme Court of Pennsylvania   granted a Petition for Allowance of Appeal on the following issue:

If an attorney ongoing [sic] represents a client post-occurrence of   legal malpractice , should that continuing representation otherwise   toll the statute of limitations ?

(January 28, 2020)

In Meisels v. Fox Rothschild LLP, the Supreme Court of New Jersey addressed whether a law firm is liable for conversion and breach of fiduciary duty for distribution of funds wired to the firm’s trust account by a third-party, non-client intermediary . The court held that the law firm was not liable because it was not made aware , nor did it have any basis upon which it reasonably should have been aware , of the third-party non-client.  (January 9, 2020)

In Rawan v. Continental Casualty Company, the Supreme Judicial Court of Massachusetts held that a consent-to-settle clause in a professional liability insurance policy did not violate the Massachusetts Insurance Bad Faith statute, M.G.L. c. 176D . The court held that there was no legislative intent to preclude consent-to-settle clauses in professional liability policies, and recognized that consent-to-settle clauses serve a valuable purpose in the professional liability context, including protecting a professional’s reputation and good will , and encouraging professionals to obtain an important but voluntary line of insurance . The court also rejected the argument that only consent-to-settle clauses paired with hammer clauses are permissible. (December 16, 2019)

In The Patriot Group, LLC v. Edmands, the Appeals Court of Massachusetts addressed whether an attorney was liable for defamation based on blog posts falsely claiming that a company had committed tax and security fraud. Because the blog post restated claims the attorney had made notifying the company about his client’s whistleblower status, the attorney argued that litigation privilege barred liability for defamation. Where litigation privilege applies, written or oral communications by a party, witness, or attorney prior to, in the institution of, or during and as a part of a judicial proceeding involving them are absolutely privileged even if uttered maliciously or in bad faith. Here, the SEC whistleblower claims referenced in the statements were not judicial , and could not support application of the litigation privilege . (November 13, 2019)

In Shaw v. Shand , the Superior Court of New Jersey, Appellate Division , considered whether semi-professionals, such as home inspectors, should be deemed to be “ learned professionals ” exempt from liability under the Consumer Fraud Act (CFA), when those semi-professionals are subject to regulation by a separate regulatory scheme . The court found that the judicially created “ learned professional” doctrine should include only those professions historically recognized as “learned” based on the requirement of extensive learning or erudition. Accordingly, the court held that home inspectors and other licensed semi-professionals are not learned professionals simply because they are otherwise regulated, and that they remain subject to CFA liability absent a finding that a direct and unavoidable conflict exists between application of the CFA and application of any other regulatory scheme.  (August 15, 2019)

In Lucas v. 1 on 1 Title Agency, Inc. , the Superior Court of New Jersey, Appellate Division , addressed whether a trial court that adjudicated a successful legal malpractice action likewise had subject matter jurisdiction to adjudicate a resultant dispute for counsel fees between the plaintiff and her counsel. The court found that, unless a petition to adjudicate a fee dispute has been filed under the Attorney’s Lien Act , there is no subject matter jurisdiction, emphasizing that plaintiff’s counsel were not parties to the malpractice action from which the disputed fees arose.  (August 9, 2019)

In   Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman and Stahl, P.C. , the   Supreme Court of New Jersey   addressed whether the   entire controversy doctrine   operated to preclude a client from bringing a   legal malpractice   claim against its former law firm after the suit gave rise to the malpractice claim and the law firm’s subsequent   collection action for outstanding attorneys’ fees had been fully adjudicated. The court stated that, while the clients were not required under the entire controversy doctrine to assert their legal malpractice claim in the underlying matter, the law firm’s collection action did not constitute an underlying suit and the clients were required to assert their malpractice claim in that case. The court, therefore, held that the clients were barred from bringing their legal malpractice suit, unless they could demonstrate that they did not have a   fair and reasonable opportunity   to assert that claim in the collection action.   (March 7, 2019)

In Rupert v. King , the Supreme Court of Pennsylvania granted permission to appeal on the issue of whether an award of punitive damages against an attorney under the Dragnoetti Act infringes upon the Pennsylvania Supreme Court’s constitutional power to regulate the conduct of attorneys . (February 21, 2019)

In   180 Ludlow Development LLC v. Olshan Frome Wolosky LLP , the   New York Supreme Court, Appellate Division, 1st Department , addressed whether, in a   legal malpractice   action, the law firm’s alleged   negligent   representation of the plaintiff   client   with respect to a zoning lot development and easement agreement was the   proximate cause   of the   client’s   alleged   damages . The court noted that   proximate cause   is generally a   question of fact   for the   factfinder   but in certain circumstances can be determined as a   matter of law . The court held that this was one of those circumstances given that the   client’s damages   were caused by its failure to keep the law firm informed and its unilateral decision that certain construction work would constitute a violation as defined in the subject agreement.   (October 30, 2018)

In   Brean Murray, Carret & Company v. Morrison & Foerster LLP , the   New York Supreme Court, Appellate Division, 1st Department , addressed whether the doctrine of   equitable estoppel   tolled   the   statute of limitations   of a   legal malpractice   claim brought by the plaintiff, a former   client   of the defendant   law firm. The court held that the doctrine of   equitable estoppel   did not   toll   the   statute of limitations   because the former client possessed timely knowledge sufficient to have placed the former client under a duty to make inquiry and ascertain all of the relevant facts prior to the expiration of the applicable   statute of limitations   for   legal malpractice .   (October 30, 2018)

In Gregory v. Greguras , the Superior Court of Pennsylvania addressed waiver of the attorney-client privilege in a cause of action for intentional interference with expectation of inheritance filed by the decedent’s children against their father’s attorney. During opening statements of the trial, the counsel for the defendant-attorney told the jury that the defendant attorney would testify that he had fully advised the decedent as to the consequences of his estate-planning decisions. The court held that the last minute waiver of the attorney client privilege in opening statements resulted in prejudice and unfair surprise to the decedent’s children. (September 20, 2018)

In Balducci v. Cige , the Superior Court of New Jersey, Appellate Division , found a fee agreement unenforceable because the attorney failed to adequately inform his client about the agreement’s ramifications. The court held that if an attorney charges clients in fee-shifting cases a fee based on an hourly rate , the attorney is ethically obligated to disclose that the hourly rate-based fee could approach or exceed the client's recovery. The attorney must provide examples of how much hourly fees have totaled in similar cases. Counsel who require clients to advance costs are ethically obligated to provide information about litigation costs such as deposition and expert fees, and provide examples of what costs have totaled in similar types of cases. An attorney is also ethically obligated to inform the client that other competent counsel who represent clients in similar cases advance litigation costs and represent clients solely on a contingent fee basis without an hourly component. (August 30, 2018)

In  Hawkins v. Borough of Barrington , the  Superior Court of New Jersey, Appellate Division , addressed the plaintiff’s burden of proving personal injury in a  professional negligence   claim  involving a  real estate transaction . The court held that professional negligence actions that do not involve a parent-child relationship, malicious use of process, or wrongful birth – which do not require enhanced proof –  require expert opinion  to set forth evidence of bodily injury or “demonstrable psychiatric sequelae proximately caused by the tortfeasor's misconduct.”  (August 17, 2018)

In Medical Mutual Insurance Company of Maine v. Burka , the United States Court of Appeals for the First Circuit held that an insurer did not owe a duty to defend a doctor under his professional liability insurance policy , where the doctor was accused of improperly accessing his wife’s and his wife’s parents’ medical records in order to harass them. The court held that no duty to defend existed because the allegations in the complaint revealed no potential factual or legal basis for concluding that the doctor’s actions resulted from ‘ Professional Services ’ rendered within the scope of his duties as a physician. In particular, with respect to the confidentiality of medical records, the court noted that the definition of ‘Professional Services’ tied the confidentiality obligation to the provision of healthcare services to a patient claiming the breach of that obligation. The allegations in the complaints did not permit a finding that any doctor-patient relationship existed. (August 10, 2018)

In Preferred Contractors v. Sherman , the Superior Court of Pennsylvania addressed an insurer’s claims for negligence and common law indemnity against an insurance agent for failing to provide an insured with a copy of a policy and for failing to provide the insurer with an accurate insurance application. The court held that the insurer’s negligence claims were barred by the economic loss doctrine since they alleged purely economic loss . The court determined that there was no basis for a common law indemnity claim once the negligence claims were dismissed. (July 24, 2018)

In Sang Seok Na v. Schietroma , the New York Supreme Court, Appellate Division, 2d Department , addressed whether a plaintiff in an underlying personal injury action could recover damages for legal malpractice against an attorney. In this action, the plaintiff alleges that the attorney committed legal malpractice by failing to timely move to have the underlying personal injury action restored to the trial calendar. The court noted that in order to recover for legal malpractice, a plaintiff must prove that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that this failure proximately caused the plaintiff to suffer damages. Moreover, a plaintiff must demonstrate that he or she w ould have prevailed but for the attorney’s negligence . Seeing that it was entirely speculative that the plaintiff would have succeeded if not for the attorney’s alleged error, the court dismissed the matter. (July 5, 2018)

In Cohen v. Sive, Paget & Riesel, P.C. , the New York Supreme Court, Appellate Division, 1st Department , addressed whether a law firm committed malpractice by failing to advise its client to promptly notify its insurer of its claim as required by the client’s policy. The law firm argued that its client knew of the claim a month before it retained the law firm, and therefore the insurer would have denied the claim anyway. The court held that the record did not conclusively demonstrate that a month’s delay would have precluded coverage; entry of summary judgment was therefore inappropriate. (June 14, 2018)

In Yellin v. Zimmerman , the Supreme Court of New York, Appellate Division, 1 st Department , considered whether the lower court properly determined that a breach of contract cause of action is not redundant of a malpractice claim . The court held that the lower court properly determined that the breach of contract cause of action was not redundant of the malpractice claim because the breach of contract claim is “premised upon obligations distinct from those that flow from professional standards of architectural practice .” (June 7, 2018)

In Knopick v. Dennis Boyle and Boyle Litigation , the Superior Court of Pennsylvania considered whether an email drafted by a former non-attorney law firm employee to himself using only a personal email account was protected by attorney-client privilege in a legal malpractice litigation . The email was created in anticipation of the former employee’s meeting with an attorney outside the firm (and later a second attorney within the firm). The court held that the defendant law firm lacked standing to assert attorney-client privilege because the privilege belongs to the non-party, former employee and not the law firm. Furthermore, the email was not created as a confidential communication to an attorney for the purpose of securing legal advice or created upon directive of counsel. (May 30, 2018)

In Iannucci v. Kucker & Bruh, LLP , the New York Supreme Court, Appellate Division, 2d Department , addressed whether mere gaps in the plaintiffs’ proof of damages in a legal malpractice action is sufficient to warrant summary dismissal. In reversing the motion court’s grant of summary judgment to the defendant law firm, the court held that that the defendant failed to tender sufficient evidence to eliminate all material issues of fact from the case. The court noted that even if the plaintiffs’ damages could not be precisely calculated at the summary judgment stage, expenses to the client resulting from attorney delays are deemed to be ascertainable damages in connection with a legal malpractice cause of action. (May 16, 2018)

In Suttongate Holdings Limited v. Laconm Management , the New York Supreme Court, Appellate Division, 1st Department , addressed whether clients could assert a claim for fraudulent inducement against their lawyer in connection with a failed joint venture . The court held that the clients’ allegations describing their attorney-client relationship stated a cause of action for breach of fiduciary duty because they alleged that he served as their attorney for years, both before and during the joint venture, negotiated unrelated contracts and handled unrelated lawsuits. The court also rejected the attorney’s argument that the clients could not argue justifiable reliance in light of the clear terms of the contract because the attorney’s alleged assurances and fraud “were the very cause of defendants’ failure to review the documents carefully.”  (April 10, 2018)

In  Meyer, Darragh, Buckler, Bebenek & Eck, PLLC v. Law Firm of Malone Middleman PC , the  Supreme Court of Pennsylvania, Western District  addressed whether a  predecessor law firm  could recover damages in  quantum meruit  from a  successor law firm  when the successor law firm and its client  retained a benefit achieved by the predecessor law firm and no contract governed the situation . The court held that a predecessor law firm can recover in  quantum meruit “ only where the facts demonstrate  unjust enrichment .” (March 6, 2018)

In Dormitory Authority of the State of New York v. Samson Construction Company, the New York Court of Appeals addressed whether negligence claims were duplicative of a breach of contract claim . The allegations in that action centered on an architect’s alleged breach of contract  during the course of building a laboratory. Negligence claims were also asserted, which were identical except that it was alleged that the architect failed to comply with professional standards of care. The court found that, while under certain circumstances a professional architect may be subject to a tort claim, the only damages alleged were within the contemplation of the parties under the contract. Therefore, the court held that the negligence claim was duplicative of the breach of contract claim . (February 15, 2018)

In  Smith, Gambrell & Russell, LLP v. Telecommunication Sys., Inc. , the  Supreme Court of New York, Appellate Division, 1st Department , considered whether an attorney committed  legal malpractice  by  failing to file a timely motion  for  attorneys’ fees  in a federal  patent proceeding. In this action, the attorney’s client alleged that the attorney’s filing of a motion for sanctions instead of a motion for attorney’s fees constituted malpractice. The court noted that the record demonstrated that the attorney contemplated filing a motion for attorney’s fees but decided against it. Therefore, the court found while the client may be able to allege that the attorney made  an error in judgment,  the client did not have a claim for  malpractice.  (November 14, 2017)

In  Eurotech Construction Corporation v. Fischetti & Pesce, LLP , the  New York Supreme Court, Appellate Division, 1st Department , addressed whether, in a  legal malpractice action , a law firm committed  malpractice  by failing to ensure that the firm’s former client gave  timely notice to its excess insurance carrier  that the primary insurer’s limits were likely to be exhausted in connection with an underlying personal injury action. The court explained that a  law firm may have an obligation to investigate insurance coverage . The court held that, although the former client had been advised by its insurer’s third-party administrator to notify its excess carrier of the claim, the issue was not what the former client knew but whether the firm breached its duty by not providing timely information obtained in the underlying action. (November 9, 2017) 

In  Kiribati Seafood Company, LLC v. Dechert LLP , the  Supreme Judicial Court of Massachusetts  addressed whether an  attorney  is liable for  professional negligence  where the negligence is preceded by  judicial error . In the underlying litigation, the former client’s claims had been denied by the court because the former client’s attorney failed to provide evidence – which the attorney possessed – that the court erroneously concluded was required for the client to prevail on its claims. In the professional negligence action, the Supreme Judicial Court held that the attorney’s failure to provide the court with the evidence that it required is a  concurrent cause , rather than a superseding cause, such that the attorney could be found liable for professional negligence.  Thus, the court warned that where a lower court has indicated that it has a different, even erroneous, view of the applicable law, the attorney is negligent if her client could prevail on the facts under the erroneous view of the law and the attorney fails to argue under that view of the law.   (October 11, 2017)

In Maroulis v. Sari M. Friedman, P.C. , the New York Supreme Court, Appellate Division, 2d Department , addressed whether, in a legal malpractice action, the law firm’s former client sufficiently pleaded specific factual allegations demonstrating that, but for the law firm’s alleged negligence , there would have been a more favorable outcome in the underlying proceeding or that the former client would not have incurred any damages. In dismissing the legal malpractice claim, the court held that the former client’s conclusory allegations merely reflected a subsequent dissatisfaction with the settlement in the underlying matrimonial action and that the former client failed to demonstrate that, but for the law firm’s alleged negligence, there would have been a more favorable outcome.  (September 13, 2017)

In Holland v. Kantrovitz & Kantrovitz LLP , the Appeals Court of Massachusetts addressed whether a woman’s claims for legal malpractice against a law firm who neglected to file her claim prior to the statute of limitations survived the woman’s bankruptcy . The law firm took on representation of the woman for her slip and fall case but neglected to contact her and were unaware that she went through bankruptcy pro se before the statute of limitations on the claim had run. The court held that the malpractice claim did not accrue until after the bankruptcy , and thus was not extinguished by the statute of limitations. As for the bankruptcy’s impact on the unfiled slip and fall case, which remained relevant as a measure of damages for the malpractice action, the court concluded that the bankruptcy would not have extinguished the claim but merely changed the real party in interest from the woman to the trustee. (August 15, 2017)

In Advanced Chimney, Inc. v. Graziano , the New York Supreme Court, Appellate Division, 2d Department , addressed whether an attorney may be disqualified since she was likely to be a witness on a significant issue of fact . According to Rule 3.7(b)(1) of the Rules of Professional Conduct, “[a] lawyer may not act as [an] advocate before a tribunal in a matter if . . . another lawyer in the lawyer’s firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client.” The court did not disqualify the attorney because there was no showing that the attorney’s testimony may be prejudicial to her client’s case . (August 2, 2017)

In Jay Deitz & Associates of Nassau County, Ltd. v. Breslow & Walker, LLP , the New York Supreme Court, Appellate Division, 2d Department , addressed whether an attorney may also act as a broker in the sale of a business . The court determined that this relationship posed a conflict where the retainer agreement provided for a contingency fee in the event a sale of the company was completed. The court stated that a “ lawyer is strictly forbidden from undertaking a representation where the lawyer possesses a personal, business, or financial interest at odds with that of his or her client .” (August 2, 2017)

In Fergus v. Ross , the Supreme Judicial Court of Massachusetts addressed whether apparent authority to create an agency relationship existed between a lawyer , who financed a real estate transaction with a borrower, and the borrower’s referral source to the lawyer. In referring the borrower to the lawyer, the referring party obtained a sideloan from the borrower out of the proceeds of the loan. Holding that apparent authority did not exist, the Court reasoned that the lawyer had not acquiesced or ratified the referral source’s conduct regarding the side loan because only the words and conduct of the referral source connected the lawyer to the side loan and the loan documents did not mention the side loan. (August 2, 2017)

In McGuire v. Russo , the Supreme Court of Pennsylvania accepted review of whether the court should overturn a prior decision, which barred legal malpractice suits following settlement of a lawsuit absent an allegation of fraud , even in instances where an attorney’s negligence led to a lesser settlement . (June 6, 2017)

In C.S. Osborne & Company v. Bollinger, Inc. , the Superior Court of New Jersey, Appellate Division , considered whether an insurance broker had a duty to provide quotes for higher policy limits to a policyholder. The court reasoned that no special relationship existed between the insurance broker and the policyholder necessitating the insurance broker to advise the policyholder of higher policy limits. Therefore, the court held that the insurance broker did not have a duty to provide quotes for higher policy limits to a policyholder . (May 1, 2017)

In Villani v. Seibert , the Supreme Court of Pennsylvania considered whether the Dragonetti Act violates the Pennsylvania Constitution by infringing on the Supreme Court’s exclusive power to regulate the practice of law . The court held that the Act is constitutionally sound because it involves substantive lawmaking of the sort typically entrusted to the legislature and is a law of general application rather than specifically targeted to legal professionals. (April 26, 2017)

In Stein Industries, Inc. v. Certilman Balin Adler & Hyman, LLP , the New York Supreme Court, Appellate Division, 2d Department , addressed the application of the doctrine of continuous representation to calculate the statute of limitations for legal malpractice claims stemming from advice provided on the purchase of several companies. The three-year statute of limitation for legal malpractice claims is generally tolled until the attorney’s continuing representation of the client with regard to the particular matter terminates. The court held that a question of fact remained as to whether a meeting that occurred two years after the purchase of the businesses regarding how to remedy the effects of the alleged deficient legal advice was sufficient to establish a continuous representation as to toll the running of the statute of limitations. (April 5, 2017)

In Doe v. American Guaranty and Liability Company , the Appeals Court of Massachusetts held that the plaintiff had waived the attorney-client privilege as to information that he revealed to his attorney in an underlying action because that information was relevant, material and necessary to his attorney’s defense in the subsequent malpractice action brought by the plaintiff against the attorney. (March 1, 2017)

In Freundlich & Littman v. Feierstein , the Superior Court of Pennsylvania addressed whether judicial privilege and/or judicial immunity shields an attorney from any civil liability in an abuse of process, misuse of process and wrongful use of process action . The court held that judicial privilege/immunity does not bar litigation of claims specifically arising under the Dragonetti Act , which allows a plaintiff to seek recovery against another for the wrongful use of civil proceedings . (February 23, 2017)

In Jeremias v. Allen , the New York Supreme Court, Appellate Division, 1st Department , addressed the issue of attorney malpractice in regard to a real estate transaction whereby the property buyers took an assignment of a purchase and sale agreement involving a commercial building. The property buyers alleged that the attorneys failed to conduct due diligence on the transaction and failed to procure renewal leases. The court ultimately held that the sole cause of damages resulted from the property buyers’ informed choice to take the calculated risk of closing on the assignment transaction prior to procuring a renewal lease from the primary tenant. (January 19, 2017)

In Rodriguez-Vazquez v. Solivan Solivan , the United States Court of Appeals for the First Circuit held that an attorney did not violate a court order when he made statements about a confidential civil rights settlement to the local press. The court reasoned that statements that the settlement “vindicated” the plaintiffs’ rights did not equate to a concession of liability by the defendants. In addition, the court noted that the statement did not reveal the terms and conditions of the settlement.  (December 23, 2016)

In Heldring v. Lundy Beldecos & Milby, P.C. , the Superior Court of Pennsylvania addressed the issue of whether an attorney can be held liable for legal malpractice when the attorney successfully recovers a judgment on behalf of his client, but the judgment is against a business entity’s trade name and not the actual legal entity . The court held that, upon proper proof, an attorney’s failure to sue the correct party may be a viable basis for a legal malpractice cause of action. (November 28, 2016)

In Swift Funding, LLC v. Isaac , the New York Supreme Court, Appellate Division, 1st Department , addressed whether an attorney was liable to an assignee for conversion where it was alleged that the attorney had notice of an assignment of the law firm’s client’s recovery of litigation proceeds and the attorney disbursed such proceeds in disregard of the assignment . The Court held that one who interferes with another’s possessory rights in property by disposing of it may be liable for conversion and because the record presented triable issues of fact regarding the attorney’s notice of the existence of the assignment , the conversion claim asserted against the attorney should not be dismissed. (November 10, 2016)

In The Estate of Francis P. Kennedy v. Stuart A. Rosenblatt, C.P.A., the Superior Court of New Jersey, Appellate Division ,addressed whether counsel should be disqualified on the basis of conflict of interest after the attorney who had filed and dismissed the underlying professional negligence action recommenced the action after joining the law firm that had defended the Estate in the previous action. The court looked to Rule of Professional Conduct 1.10 , and determined that the trial court’s disqualification order should be vacated subject to the attorney filing certifications describing what pertinent information was accessed at the new firm, whether the information could be deleted, and how those who had accessed the file avoided reviewing confidential information material to the underlying action. The court held that this matter would be remanded if this process revealed that the substantive content of confidential information had been reviewed. (November 4, 2016)

In Durst v. Durst , the United States Court of Appeals for the Third Circuit addressed the application of collateral estoppel against a co-trustee of a revocable, inter vivos trust who participated in prior litigation regarding the forced sale of a trust asset but was never named a formal party to that litigation. Although the co-trustee was never formally joined as an intervenor , the trial court essentially treated him as such. The co-trustee participated in the case management conference, conducted discovery, submitted briefs, and participated in oral arguments. Because the court “took pains” to include the co-trustee as an intervenor, the court held that the co-trustee was properly precluded from re-litigating those issues in the subsequent and related malpractice litigation against the trust’s attorneys. 

White and Williams' attorneys Christopher Leise and Marc Penchansky secured this favorable result for our client.  (October 19, 2016)            

In Weinberg v. Sultan , the New York Supreme Court, Appellate Division, 1 st Department , addressed whether a complaint alleging that a purchaser and her attorney exerted undue influence over the seller in a real estate transaction adequately alleged fraud and legal malpractice . The court held that the complaint failed to allege any material misrepresentation , a required element of fraud, and that the seller did not allege how the purchaser and her company exerted any undue influence over her or coerced her into a transaction that she alleged made no economic sense. The court also held that the purchaser’s attorney made a prima facie showing of a lack of proximate cause , an essential element of legal malpractice. (September 1, 2016)

In Kilmer v. Sposito , the Superior Court of Pennsylvania addressed whether a client may sue her lawyer when the lawyer incorrectly advised her on the law, which led the client to voluntarily accept a settlement that was less than the client was statutorily entitled to receive . The court noted that an unsatisfied client may not generally challenge an attorney’s professional judgment with respect to an amount of money the client should accept in a settlement unless the client can prove he or she was fraudulently induced to settle . In this case, the client could sue because the alleged malpractice was not the attorney’s judgment on the value of the case, but counsel’s failure to correctly advise the client on the law pertaining to her statutory right to half of her husband’s estate. (July 1, 2016)

In Baker v. Harrington , the First Circuit Court of Appeals held that a bankruptcy attorney was properly sanctioned by the trial court for twice describing the applicable law in a manner that was materially misleading when it ordered the attorney to attend an in-person, semester long, three credit-hour class on legal ethics or professional responsibility in an ABA accredited law school. In briefs filed with the bankruptcy court, the attorney had asserted propositions of law which were unsupported or contradicted by the legal authority cited and at other times asserted propositions for which no legal support existed. (June 29, 2016)

In Miller v. St. Luke’s University Health Network , the Superior Court of Pennsylvania held that a judgment could be entered on a Dragonetti Act claim even though the plaintiff failed to prove damages. However, mere proof of tortious conduct did not entitle the plaintiff to a presumption of damages and the plaintiff could not recover absent proof of one or more of the enumerated damages set forth in Section 8353 of the Act. (June 24, 2016)

In Mortgage Grader, Inc. v. Ward & Olivo, LLP , the Supreme Court of New Jersey addressed whether law firms organized as limited liability partnerships are required to maintain malpractice insurance during a firm’s windup period . The court held that under Rule 1:21-1C, the mandate to carry malpractice insurance only applied to the performance of “professional services,” and therefore “administrative activities” such as a wind-up were not included in the term. Thus, “tail coverage” is not required to be carried. (June 23, 2016)

In Rosalind W. Sutch, as Executrix of the Estate of Rosalind Wilson, Deceased v. Roxborough Memorial Hospital , the Superior Court of Pennsylvania addressed whether the trial court abused its discretion i n imposing sanctions against the defendants’ attorney for contempt by engaging in a willful violation of a court order . The court reversed the trial court’s contempt order and held that the order allegedly violated by defense counsel was not definite, clear and specific , the plaintiff failed to meet its burden of proving defense counsel was in contempt, the trial court made unnecessary ‘credibility determinations, the trial court violated defense counsel’s due process rights by failing to hold an evidentiary hearing, and the trial court erred when it granted plaintiffs’ counsel’s alleged fees and costs based on a discounted version of quantum meruit in a contingency fee case. (June 15, 2016)

In In the Matter of Frank J. Cozzarelli, An Attorney at Law , the Supreme Court of New Jersey addressed the significance of mental illness in the discipline of an attorney . The court found that although the attorney “suffered a breakdown” following a criminal investigation, the evidence in the record did not indicate the attorney was deprived of the ability to act purposefully and knowingly , or the ability to distinguish between right and wrong . Because the attorney was not able to show a mitigating defense application, the Court adopted the disciplinary board’s recommendation and disbarred the attorney. (May 2, 2016)

In Innes v. Madeline Marzano-Lesnevich , the Supreme Court of New Jersey addressed whether attorneys who intentionally violate an agreement can be liable for attorneys’ fees as consequential damages to a non-client beneficiary of the agreement. Pursuant to an agreement between divorcing parents and the wife’s attorneys, the attorneys were to hold the daughter’s passports to restrict her travel outside of the United States. The attorneys subsequently released the daughter’s passports to the wife, who then removed the child from the United States. The court held that the father would be entitled to attorneys’ fees if it were found that the attorneys intentionally breached their fiduciary responsibility to him, regardless of the existence of an attorney-client relationship. (April 26, 2016)

In Myer, Darragh v. Malone Middleman , the Supreme Court of Pennsylvania addressed a dispute between two law firms over attorneys' fees earned in a wrongful death civil litigation settlement. The court held that the successor law firm, Malone Middleman, which settled the wrongful death case, was not a party to a contract between the predecessor law firm, Myer, Darragh, and an attorney who left Myer, Darragh and joined Malone Middleman. As the departing attorney was an employee of Myer, Darragh and not a partner , the court declined to extend Ruby v. Abington Memorial Hospital , which would have bound Malone Middleman to the contract between the departing attorney and Myer, Darragh regarding attorney fees had the departing attorney been a partner. (April 25, 2016)

In John J. Robertelli v. The New Jersey Office of Attorney Ethics, the Supreme Court of New Jersey held that the state Supreme Court and its ethics bodies have exclusive jurisdiction over attorney disciplinary matters. The court held the Office of Attorney Ethics may proceed separately even if the District II Ethics Committee has declined to docket the grievance. (April 19, 2016)

In Mack v. Wells Fargo Bank, N.A. , the Appeals Court of Massachusetts held that an auction agency was not immune from liability under the litigation privilege for continuing to advertise and schedule a foreclosure auction of the plaintiff homeowner’s property in violation of a temporary restraining order and preliminary injunction. The court held that the privilege did not apply to the auction agency because the foreclosure was non-judicial; the auction agency was not named as a defendant in the plaintiff’s original wrongful foreclosure complaint and was not a party, counsel, or witness in the institution of, or during the course of, the plaintiff’s original law suit at the time that it engaged in the conduct; and did not engage in those actions in contemplation of being named as a defendant. The court held, however, that the law firm defendant’s conduct in furtherance of the barred foreclosure proceedings was immune from liability under the litigation privilege because the law firm was pursuing the foreclosure in its role as attorney for the bank, and the plaintiff had advised the law firm of her intent to file suit against the bank if it did not postpone the foreclosure auction. (December 1, 2015)

In CRC Litigation Trust v. Marcum, LLP , the New York Supreme Court, Appellate Division, 2nd Department , dismissed a cause of action for accounting malpractice as untimely. Pursuant to CPLR 3211(a)(5), a defendant must establish, prima facie, that the time in which to sue has expired. A cause of action for accounting malpractice accrued upon the client’s receipt of the accountant’s work product and must be commenced within three years of the accrual date . The defendant met this initial burden. Further, the court found that the statute of limitations was not tolled by the fact that plaintiff filed for bankruptcy protection since the statute of limitations had already lapsed by that date. (October 28, 2015)

In Antonelli v. Guastamacchia , the New York, Appellate Division, 2d Department, addressed whether an attorney was liable for legal malpractice for his representation of a client in a real estate transaction. The court found that the attorney was entitled to summary judgment because even if he failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, any such failure was not the proximate cause of the client’s damages. (September 23, 2015)

In Waters Edge @ Jude Thaddeus Landing, Inc. v. B&G Group, Inc . , the New York Supreme Court, Appellate Division, 2d Department , addressed whether an insurance broker was liable to his client for failing to advise the client to obtain additional coverage , even in the absence of a specific request . The court held that the plaintiffs failed to state a cause of action against the insurance broker to recover damages for breach of a fiduciary duty because they failed to allege the existence of a “special relationship” above and beyond the ordinary broker-client relationship. (June 3, 2015)

In Schiff v. Sallah Law Firm, P.C. , the New York Appellate Division, 2d Department , addressed the issue of legal malpractice in the context of the settlement of a client’s case. The court held that the law firm was entitled to summary judgment because it established that it did not fail to exercise reasonable skill and knowledge commonly possessed by members of the legal profession and that the settlement of its client’s case was not effectively compelled by any mistakes on the part of the law firm. (May 6, 2015)

In Dr. Humayun Akhtar v. Casey & Keller, Inc. , the Superior Court of New Jersey, Appellate Division , addressed whether the plaintiffs were entitled to summary judgment as a matter of law, or at least a new trial, where the plaintiffs’ expert’s opinion regarding defendant’s breach was unrebutted by the defendant’s expert.  The court held that plaintiffs were not entitled to summary judgment for defendant’s failure to introduce any expert testimony to address the issue of breach so long as plaintiffs’ expert’s credibility was subject to question or so long as the factual predicate to plaintiffs’ expert’s opinion remained subject to reasonable dispute on the record. (February 24, 2015)

In Hill International, Inc. v. Atlantic City Board of Education , the Superior Court of New Jersey, Appellate Division , addressed whether N.J.S.A. 2A:53A-27 should be construed to require a supporting affidavit of merit from a “like-licensed” professional in all malpractice or negligence cases.  The court held that to support claims of malpractice or negligence liability, the affidavit of merit must be issued by an affiant who is licensed within the same profession as the defendant. (December 30, 2014)

In Board of Trustees of Ibew Local 43 v D'Arcangelo & Co., LLP , the New York Supreme Court, Appellate Division, Fourth Department addressed the issue of proximate cause in the context of an auditor’s professional malpractice and its client’s subsequent investment loss .  The court held that had the auditor abided by generally accepted auditing standards , it would have prevented the client’s investment loss.  Therefore, the auditor’s actions were the proximate cause of the investment loss. (January 2, 2015)

In Mortgage Grader, Inc. v. Ward & Olivo, L.L.P., the Superior Court of New Jersey, Appellate Division , addressed whether an attorney should lose his liability protection as a partner in a limited liability partnership (LLP) where the LLP failed to purchase a tail insurance policy and was sued for malpractice.  The court held that when attorneys practice as an LLP, and the LLP fails to obtain and maintain professional liability insurance , such a violation is grounds for the Supreme Court of New Jersey to terminate or suspend the LLP’s right to practice law or otherwise to discipline it.  However, the court dismissed plaintiff’s complaint with prejudice against one of the defendants because plaintiff failed to serve him with an affidavit of merit as required by statute. (November 14, 2014)

In Galecki v. Omnicare Dental, the New York Supreme Court, Appellate Division, First Department, addressed the statute of limitations of a medical malpractice claim.  The court held that a claim for malpractice that occurred over five years ago was properly dismissed for being brought beyond the statute of limitations even though the doctor had continued to see the patient within the statute of limitations period because the continued treatment was unrelated to the treatment at issue in the malpractice claim. (October 28, 2014)

In Phillips and Wicks’ End, Inc. v. Wilks, Lukoff & Bracegirdle, LLC the Supreme Court of Delaware , addressed whether, in a legal malpractice action , expert testimony was properly excluded where the expert was a New Jersey attorney , who familiarized himself with Delaware case law .  The court held that expert testimony was properly excluded as an expert witness must be familiar with the applicable standard of care in the locality where the alleged malpractice occurred, rather than merely reading case law, and that summary judgment was properly granted based on the plaintiff’s failure to present a qualified witness and make out a prima facie case of malpractice. (October 1, 2014)

In Wally G. v. New York City Health and Hospitals Corporation , the New York Supreme Court, Appellate Division, First Department , addressed whether medical records placed a public hospital on notice that the plaintiff’s injuries may have been caused by alleged deviations from the standard of care, so as to forgive the prerequisite of filing a notice of claim.   The Court held that since that the medical records , even as interpreted by Plaintiff’s expert, do not yield a non-speculative basis for determining whether the deficits of the prematurely born child would have been less severe absent the alleged deviations of the standard of care, it cannot be said that the medical records put the public hospital on notice of the claim. (September 18, 2014)

In Pollina v. Dishong, the Superior Court of Pennsylvania addressed whether the investigatory findings of a consultant for the Bureau of Program Integrity (BPI) are privileged such that there can be no professional negligence claim against the consultant for allegedly failing to exercise due care in the investigation.  The court found that judicial immunity did not apply because the investigation was not performed in the regular course of judicial proceedings.  Similarly, the court found that quasi-judicial immunity was inapplicable because the BPI’s function is not equivalent to that of the judiciary and involves no discretionary decision-making authority.   Accordingly, the court determined that a professional negligence claim against such a consultant could proceed. (July 22, 2014)

In Fessenden v. Robert Packer Hospital, the Superior Court of Pennsylvania considered the liability of a hospital and doctor when they admitted leaving a surgical sponge in the plaintiff’s abdomen following surgery.  The plaintiff raised a genuine issue of fact as to negligence and causation by invoking the doctrine of res ipsa loquitur.   The court held that, under the circumstances, res ipsa loquitur permitted the jury to infer causation and negligence on the part of the hospital even without expert testimony. (July 23, 2014)

In Lisa Di Giacomo v. Michael S. Langella, the New York Supreme Court, Appellate Division, Second Department, addressed whether the defendant attorney’s allegedly inadequate motion papers constituted legal malpractice in an underlying personal injury action. The court held that the attorney established that the plaintiffs had no reasonable excuse for their failure to appear for trial, thus establishing that the alleged inadequacy of the motion papers prepared by the attorney on the plaintiff’s behalf was not the proximate cause of the plaintiff’s damages. (July 9, 2014)

In Sokolsky v. Eidelman, the Superior Court of Pennsylvania addressed the viability of vicarious liability and corporate negligence claims against a skilled nursing facility in the context of a legal malpractice action.   With regard to vicarious liability, the court held that a plaintiff need not identify an individual provider, but can state a claim based on the alleged negligence of the medical staff as a unit.  With respect to corporate negligence, the court held that a medical negligence claim against a skilled nursing facility is not limited to the duties identified in Thompson v. Nason Hospital but includes the factors set forth in Section 323 of the Restatement (Second) of Torts. (June 6, 2014)

In Cusimano v. Wilson, Elser, Moskowitz, Edelman & Dicker LLP , the New York Supreme Court, Appellate Division, First Department addressed the issue of the proximate cause element of a claim for legal malpractice . The court held that because the plaintiff failed to establish that but-for the defendants’ allegedly inadequate representation , she would have obtained a successful outcome at an arbitration, the plaintiff’s claim is “ grounded in speculation and thus, insufficient to sustain a claim for legal malpractice." (June 17, 2014)

In Cooney-Koss v. Barlow, the Supreme Court of Delaware addressed the admissibility of habit testimony in a medical malpractice suit.  The court held the treating anesthesiologist who had no memory of the plaintiff’s surgery should be allowed to testify as to what he or she would have done in cases where the conduct in questions is part of the practitioner’s regular routine. (March 7, 2014)

In Nguyen v. O’Neill, the Superior Court of Pennsylvania, addressed the disbursement of settlement proceeds under a contingent fee agreement.  The court held contingent fee agreements are subject to careful scrutiny by the courts and since the agreement was ambiguous as to the calculation of the contingent fee, it would be construed against the drafter/attorney and the fee would be calculated after litigation and medical expenses were deducted from the settlement amount. (November 27, 2013)

In Fair Laboratory Practices Assoc. v. Quest Diagnostics, Inc., the United States Court of Appeals for the Second Circuit addressed whether former general counsel to defendant and current general partner of the plaintiff violated his ethical obligations by participating in the qui tam action and whether plaintiff, all of its general partners, and its outside counsel could be disqualified from bringing any subsequent qui tam actions based on similar facts.  The court held counsel acted unethically in disclosing client confidences and the False Claims Act does not preempt state ethical rules.  Further, plaintiff, its general partners and its outside counsel could be disqualified from bringing any subsequent action based on the same facts. (October 25, 2013)

In Ignelzi v. Ogg, Cordes, Murphy and Ignelzi, LLP, the Superior Court of Pennsylvania addressed a dissolving law partnership dispute. One of the partners who departed the partnership to become a judge sought an accounting of the partnership such that he could receive his contingent fees owed on cases that were unresolved at the time of his departure. The court affirmed the trial court’s order granting plaintiff’s petition for inspection of the partnership books based upon the statutory right to do so, but vacated the trial court’s order to compel defendants from accounting for contingent fee cases transferred from the former partnership to the successive partnership. The court noted that the Rules of Professional Conduct could affect the handling of the payment of any outstanding  contingent fees, and that the parameters of the partnership agreement had to be determined before defendants could be required to account for the contingent fee cases. (October 7, 2013)

In Cannonball Fund, Ltd. v Marcum & Kliegman, LLP, the New York Supreme Court, Appellate Division, First Department addressed whether dismissal for failure to state a claim in a professional liability action is appropriate when the plaintiff failed to allege proximate cause.  The court held that accepting the facts as alleged, Plaintiff could not show that the alleged malpractice of the auditor caused it harm.  Thus, the court held that a plaintiff in the professional liability context must allege proximate cause in its complaint or risk dismissal for failure to state a cause of action. (October 1, 2013)

In Cusack v. Greenberg Traurig, LLP, the Supreme Court of New York, Appellate Division, First Department, addressed the scope of an attorney-client relationship between an attorney and an employee of a corporation represented by that attorney where the attorney requested that the employee complete a shareholder questionnaire in connection with the attorney’s representation of the employer and the questionnaire misstated that the attorney represented the employee. The court held the attorney’s request that the employee complete a questionnaire did not suffice to create an attorney-client relationship or establish the privity necessary to support a claim of legal malpractice or breach of fiduciary duty. (September 26, 2013)

In Aiello v. Burns International Security Services Corporation, the New York Supreme Court, Appellate Division, First Department, addressed the issue of whether a hospital’s security agency owed a duty of care to a patient of the hospital even though there was no contractual relationship between the patient and the security agency.  The court held that in general, a nonparty cannot impose liability on a party to a contract for breach of that contract.  While there are three exceptions to this rule, the court held those exceptions did not apply to the patient in this case. (September 3, 2013)

In Kowalski v. St. Francis Hosp. & Health Ctrs., the New York Court of Appeals addressed whether a hospital and emergency room doctor owed an intoxicated patient a duty to prevent him from leaving the hospital when the patient, who had been treated at the same hospital a month earlier after having suicidal thoughts, arrived at the emergency room showing signs of severe intoxication and, while waiting to be transported to another facility, left the hospital and was hit by a car. The court held that there is no statute or principle of common law that would permit the restraint of a patient simply because his records showed that he had suicidal thoughts the month before. Thus, the hospital had no duty to prevent the plaintiff from leaving the hospital. (June 26, 2013)

In Winstock v. Galasso,   the Superior Court of New Jersey, Appellate Division, addressed whether a client can sue his attorney for incorrect legal advice which resulted in a criminal conviction. The Appellate Division undertook a three prong analysis and concluded that “a rational jury in this case could find that defendant's role as a legal advisor was a substantial factor that led plaintiffs to engage in criminal conduct.”  In cases involving tort or contract claims, issue preclusion does not automatically prevent a plaintiff in a civil trial from contesting the admitted facts that formed the basis of his guilty plea. (May 6, 2013)

In Citidress II Corp v. Ira Tokayer, the New York Supreme Court, Appellate Division addressed whether the plaintiff’s contentions were sufficient to support a cause of action for legal malpractice. The court held that speculative contentions about what might have happened had the attorney taken a different approach during litigation were not sufficient to support the allegations of legal malpractice. The court noted that since the plaintiff failed to plead specific facts showing causation and damages, its claims of legal malpractice failed to state a cause of action. The court further held that the plaintiff’s breach of contract claims were subject to dismissal as duplicative of the legal malpractice cause of action because they arose from the same facts as those underlying the legal malpractice action, and did not allege distinct damages. (April 16, 2013)

In O’Kelly v. Dawson , the Superior Court of Pennsylvania addressed the application of the statute of limitations to a legal malpractice claim.    The court held that the statute of limitations begins to run when the client should first be aware of his attorney’s malpractice.   In this case, the court found that the statute of limitations did not begin to run when the master issued non-binding recommendations that rejected the parties’ proposed alimony agreement, but when the trial court entered its order adopting the master’s recommendations. (February 19, 2013)

In Gunn v. Minton, the Supreme Court of the United States addressed whether state law legal malpractice claims for patent matters fall within the exclusive jurisdiction of the federal courts.  The Court held that 28 U.S.C. § 1338(a), which provides for exclusive federal jurisdiction over any case “arising under any Act of Congress relating to patents,” does not deprive the state courts of subject matter jurisdiction over a state law claim alleging legal malpractice in a patent case. (February 20, 2013)

In Cooper v. Lankenau Hospital, the Supreme Court of Pennsylvania addressed whether the trial court’s jury charge concerning informed consent improperly suggested that the plaintiff had to prove that the defendant doctor intended to harm the patient. The court held that that a plaintiff in a medical battery/lack-of-consent case need not prove that the defendant surgeon performed the unauthorized operation with the intent to harm the patient.   Rather, by proving that the surgery or “touching” was intentional and not consented to, a patient establishes that it was “offensive” sufficient to render the unauthorized surgery a battery.  Since those concepts were accurately recited in the entire charge, the court upheld the jury’s finding in favor of the defense. (August 20, 2012)  White and Williams’ Rosemary Schnall and Edward Koch secured this favorable result for our client.

In Mendel v. Erick Williams, M.D., the Superior Court of Pennsylvania addressed whether a Pennsylvania Court may assert general or specific jurisdiction over an out-of-state corporate healthcare provider in a medical malpractice action by a Pennsylvania resident who receives negligent treatment in a foreign jurisdiction. The court held that in this matter, the corporate healthcare provider did not maintain continuous or systematic activities as part of its general business within the Commonwealth and prevented general jurisdiction in Pennsylvania. Further, the court held the two requirements for specific jurisdiction in Pennsylvania, which includes 1) the jurisdiction must be authorized by state Long-Arm Statute; and 2) jurisdiction must comport with constitutional principles of due process, were also not met because the corporate healthcare provider did not meet the established minimal contacts requirements for specific jurisdiction. (August 20, 2012)

In Go-Best Assets Limited v. Citizens Bank of Massachusetts, the Supreme Judicial Court of Massachusetts addressed whether a bank had a duty to investigate whether an attorney was acting fraudulently in transferring funds out of the escrow account he maintained to hold client funds. The court concluded that a bank has no duty to question whether a person authorized to draw upon an account is misappropriating funds, and that the bank is only liable if it had actual knowledge of the fraud. (July 30, 2012)

In Gere v. Louis, the Supreme Court of New Jersey addressed whether Puder v. Buechel , 183 N.J. 428 (2005), created an absolute bar to legal malpractice claims after the settlement of the underlying case.  The court held that Puder is the rare exception to the rule in Ziegelheim v. Apollo , 128 N.J. 250 (1992), which permits legal malpractice actions even after settlement of the underlying case. (March 6, 2012)

In Cast Art Industries, LLC v. KPMG LLP, the Supreme Court of New Jersey addressed the circumstances under which a non-client third party to an audit may recover under the New Jersey Accountant Liability Act.  Under the Act, an accountant may be liable to a non-client third party where the accountant knew at the time of the engagement by the client that the services would be provided to the third party for a specific transaction. Because the court found that the phrase “at the time of the engagement” meant “at the outset of the engagement,” and because there was no evidence that the defendant knew at that time that its services would be provided to the plaintiff for its contemplated merger, the court held that there was no liability under the Act. (February 16, 2012)

In Skonieczny v. Cooper, the Superior Court of Pennsylvania addressed whether, pursuant to Pa. R. Civ. P. 1042.3, a certificate of merit in a professional negligence action must be filed within 60 days of filing the complaint, where the action was commenced by writ of summons before the effective date of the rule. The court held that, based on the Supreme Court of Pennsylvania’s promulgating Order limiting the application of the rule “to actions commenced on or after the effective date of [the] Order,” the rule does not apply to cases commenced by writ of summons before its promulgation. (February 7, 2012)

In Preferred Electric, Inc. v. R.G. Anderson, Inc., the Supreme Court of Delaware decided whether a disappointed bidder to a public bid contract stated a claim of professional negligence against a surety bond agent for an alleged failure to timely procure a bond.  The court held that it would require speculation to find that the bidder would have been awarded the contract had it submitted a bond.  Because the court found no causation, it did reach the issue of the agent's alleged negligence.  White and Williams’ own James Yoder and Kim Kocher represented the prevailing party, R. G. Anderson, Inc.  Although the Superior Court opinion is unpublished, we would be happy to provide you with a copy upon inquiry. (December 16, 2011)

In Rogers v. Cape May County Office of the Public Defender , the Supreme Court of New Jersey addressed the timeliness of a legal malpractice action based on representation in a criminal matter.  The New Jersey Supreme Court held that the defendant’s legal malpractice action against his former attorney, a public defender, accrued when he was “exonerated,” which occurred when his indictment was dismissed with prejudice. (December 5, 2011)

In Liggon-Redding v. Estate of Robert Sugarman, the United States Court of Appeals for the Third Circuit addressed whether Pennsylvania Rule of Civil Procedure 1042.3, requiring the filing of a certificate of merit in malpractice cases, is substantive law that federal courts must apply.  The court held that the rule is substantive and must be applied by the federal courts. (October 4, 2011)

In Frederick v. Merrill Lynch, the Superior Court of New Jersey, Appellate Division considered whether negligence claims could be maintained against Merrill Lynch for an alleged failure to monitor its accounts for fraudulent activity when another defendant induced the plaintiff to invest in a fictitious entity whose accounts were maintained by Merrill Lynch. The court upheld the dismissal of Merrill Lynch, holding that the absence of any relationship between the plaintiffs and Merrill Lynch precluded the imposition of a duty on Merrill Lynch to police the personal account maintained by a co-defendant for indicia of fraud. (November 9, 2010)

In Higgins v. Thurber, the Supreme Court of New Jersey granted a Petition for Certification of Appeal, agreeing to consider the following question: "Is plaintiff's legal malpractice action barred by the entire controversy doctrine given plaintiff's voluntary dismissal of similar claims in the prior probate action?" (September 15, 2010)

In Guido v. Duane Morris, LLP , the Supreme Court of New Jersey , addressed a legal malpractice claim arising from allegedly negligent advice related to a settlement agreement. The plaintiff was the majority shareholder and chairman of the board of directors of Allstates Worldcargo, Inc. (Allstates). The defendant represented the plaintiff in an underlying action against Allstates and several of its officers and directors that resulted in a complex settlement agreement that had nonobvious ramifications on the plaintiff's majority ownership interests, and the long-term value of his stock. The defendants argued that a plaintiff must seek to vacate a settlement as a prerequisite to bringing a malpractice claim against the lawyers who advised him to enter into the settlement. The court held that, unlike the plaintiffs discussed in prior case law, the plaintiff did not represent to the court that he was satisfied with the settlement or that the settlement was fair and adequate. The plaintiff merely represented to the court that he understood and agreed to abide by the settlement terms. Based on this reasoning, the Supreme Court held that although a plaintiff's failure to seek to vacate a settlement is a relevant factor in determining whether he has a viable malpractice claim, the failure to seek to have the settlement vacated does not, in and of itself, bar him from bringing a legal malpractice claim against the lawyers who advised him to enter into the settlement. (June 3, 2010) 

In Sabella v. Estate of Milides , the Superior Court of Pennsylvania reviewed the trial court’s refusal to strike the entry of judgment of non pros in favor of defendants based on plaintiff’s failure to file a certificate of merit in an abuse of process action against opposing counsel. In reversing the entry of judgment in favor of the defendants, the Superior Court held that a certificate of merit was not needed in this action because there was no attorney-client relationship between the plaintiff and the defendants. Absent such a relationship, the plaintiff could not sue the defendants for legal malpractice. Since a certificate of merit is required only in professional liability actions, the court reversed and remanded the case for further proceedings. (March 25, 2010) 

In Signature Bank v. Holtz, the New York Supreme Court, Appellate Division, Second Department addressed a claim for negligent misrepresentation where the plaintiff, in reliance upon the audited financials prepared by the defendant-auditor for a third party, extended a loan to that third party just before the third party went bankrupt. The court held that the action should have been dismissed because the plaintiffs failed to allege any conduct on the part of the defendant linking the defendant to the plaintiff and showing that the defendant understood the plaintiff was relying on its audited financials when it extended the loan. (August 7, 2013)

In Matter of Rosenberg, the Appellate Division, First Department addressed the appropriate discipline for a defendant-attorney who admitted to misappropriating funds from a trust account by disbursing those funds to himself in excess amounts to which he was entitled, using the trust account to comingle his personal funds with client funds, and advancing funds to his clients during the course of pending litigation while representing them. Since the defendant had an otherwise unblemished disciplinary record; his conduct never harmed any of his clients; his practice, helping children with special needs, is extremely specialized as not too many attorneys practice this area of law; and he showed substantial remorse; the court upheld the finding that his conduct was based on negligence and not venal intent and held that public censure, rather than suspension was the appropriate sanction where the defendant presented substantial mitigating evidence and did not profit from the loans he made to his clients. (August 6, 2013)

Practice Areas

  • Cherry Hill
  • Center Valley
  • Philadelphia

By using this site, you agree to our updated Privacy Policy and our Terms of Use .

  • Practical Law

Defending a professional negligence claim: a guide for solicitors

Practical law uk practice note 1-510-6449  (approx. 24 pages).

  • Identify and assess risk
  • Claims, complaints and insurances: practice compliance
  • Common Issues in Disputes - Pensions
  • Responding to a Claim
  • Insurance Litigation
  • Communicate and train
  • Construction Litigation
  • Breaches, investigations and litigation
  • Professional Appointments and Liabilities
  • Making and dealing with claims
  • Professional appointments

Professional negligence claims—claimant steps—checklist

Produced in partnership with steven o'sullivan.

This Checklist sets out the position under the Pre-Action Protocol for Professional Negligence claims (the 'Protocol') currently in force.

For general guidance on the Protocol, see Practice Note: Professional negligence claims—the pre-action protocol.

For further detail on how to pursue a professional negligence claim (including with reference to a worked hypothetical set of pleadings), see Practice Notes:

Professional negligence claims—pre-action protocol—claimant issues

Starting a professional negligence claim—a practical guide

Pleading professional negligence claims—worked hypothetical examples

together with a template Precedent: Particulars of claim—professional negligence claim.

Client’s initial instructions of potential professional negligence claim

See Practice Note: Limitation—professional negligence claims.

Is there a limitation issue pending? If so:

consider issuing protective proceedings, and/or

negotiating a standstill agreement

See Practice Note: Professional negligence claims—the pre-action protocol—Limitation and the professional negligence PAP.

Initial investigations

As with any claim, there are various preliminary investigations that should be carried out, including:

basis of claim (in contract, tort etc)

any obvious difficulties with causation

preliminary view on quantum

is there a need to retain expert evidence at

Access this content for free with a 7 day trial of LexisNexis and benefit from:

  • Instant clarification on points of law
  • Smart search
  • Workflow tools
  • 41 practice areas

** Trials are provided to all LexisNexis content, excluding Practice Compliance, Practice Management and Risk and Compliance, subscription packages are tailored to your specific needs. To discuss trialling these LexisNexis services please email customer service via our online form. Free trials are only available to individuals based in the UK, Ireland and selected UK overseas territories and Caribbean countries. We may terminate this trial at any time or decide not to give a trial, for any reason. Trial includes one question to LexisAsk during the length of the trial.

Get your quote today and take step closer to being able to benefit from:

  • 36 practice areas

Get a LexisNexis quote

* denotes a required field

To view the latest version of this document and thousands of others like it, sign-in with LexisNexis or register for a free trial.

Existing user? Sign-in CONTINUE READING GET A QUOTE

Steven O'Sullivan

Senior Associate

Steven is a robust insurance litigator who advises principally on professional liability, with particular expertise in solicitors' liability, as well as some general insurance litigation/arbitration and property damage work. His work includes: ' policy advice ' lender claims ' equity and breach of trust claims ' breach of undertaking or warranty of authority ' negligence Prior to 2002 when he began working in this area of the law, Steven acted for insurers defending personal injury claims and therefore retains residual knowledge and interest in this area in terms of loss of opportunity or undersettlement claims against solicitors. Steven spent 6 ½ years at a major insurer handling professional indemnity claims against solicitors, accountants and other professionals. He therefore has keen commercial awareness and strong insight into what insurer clients are looking for when handling litigation against their insureds. Steven is the author of numerous articles, notably in the New Law Journal, with particular focus on professionals' risk management and claim avoidance, as well as recent developments in case-law.

Popular documents

Novation—why and how to novate a contract.

Novation—why and how to novate a contractThere may be times when, rather than assigning the benefit of an agreement to a third party, the original parties wish instead to end their obligations to each other under that agreement and, in effect, recreate it, with the third party stepping into the

Forming enforceable contracts—consideration

Forming enforceable contracts—considerationThis Practice Note examines the doctrine of consideration and the key role it plays in English law in determining whether a contract is enforceable.A promise will only be capable of being contractually enforced if it is either made in a deed or made in

Tort—the different types of tort

Tort—the different types of tortThis Practice Note identifies the main torts (bar negligence and nuisance, which are covered elsewhere in our related content) and their key characteristics. Specifically:•trespass to land•trespass to the person•privacy/defamation•liability for animals•employers'

Negligence—when does a duty of care arise?

Negligence—when does a duty of care arise?This Practice Note considers the first question to ask when faced with a prospective claim in negligence—whether or not a duty of care exists between the claimant and the defendant such that, if the defendant has breached that duty, liability may arise.For

SocialTwitter

0330 161 1234

assignment of professional negligence claim

  • International Sales(Includes Middle East)
  • Latin America and the Caribbean
  • Netherlands
  • New Zealand
  • Philippines
  • South Africa
  • Switzerland
  • United States
  • Research & Reports
  • LexTalk Forum

Popular Links

  • Supplier Payment Terms
  • Partner Alliance Programme

HELP & SUPPORT

  • Legal Help and Support
  • Tolley Tax Help and Support
  • Privacy Policy
  • Cookie Settings
  • Terms & Conditions
  • Data Protection Inquiry
  • Protecting Human Rights: Our Modern Slavery Agreement

assignment of professional negligence claim

The Australian Professional Liability Blog

Stephen Warne on professional negligence, regulation and discipline around the world

Latest on assignability of tortious professional negligence claims

A man tried to sue for professional negligence in his capacity as an assignee of the alleged victim of that negligence.  The case was determined on a limitations point, but in Kovarfi v BMT & Associates Pty Ltd   [2012] NSWSC 1101 Justice McCallum of the Supreme Court of NSW gathered together the authorities in relation to the uncertain question of the assignability in Australia of causes of action in tort:

‘Was Kata-Lyn’s right of action in tort capable of assignment?

  • The third ground relied upon by the defendants is that the two assignments (in so far as they purported to assign the cause of action in tort now pleaded against BMT) were ineffective because a bare cause of action in tort is not a chose in action and is not capable of being assigned at law.
  • The defendants acknowledged that there is some divergence of opinion as to the application of that principle but submitted that the weight of authority in Australia supports their contention. The principle is often referred to (in Australia) as the rule in Poulton, having been stated in obiter dicta in the decisions of the High Court in Poulton v The Commonwealth [1953] HCA 101; (1953) 89 CLR 540 at 571.3 per Fullagar J at trial and, on appeal to the Full Court, at 602.9 per Williams, Webb and Kitto JJ, where it was described as “well-established principle” that a right of action in tort was incapable of assignment either at law or in equity.
  • Poulton was concerned with the assignment of a cause of action in tort. The House of Lords subsequently held, in a case concerning the assignment of a cause of action in contract, that a bare right of action could be assigned where the assignee had a genuine commercial interest in the enforcement of the claim: Trendtex Trading Corporation v Credit Suisse [1982] AC 679 at 703D per Lord Roskill; see also at 694E per Lord Wilberforce. In so holding, Lord Roskill described the rule that “you cannot assign a ‘bare right to litigate'” as still a fundamental principle of law.
  • Trendtex is sometimes referred to as the origin of an exception to that fundamental principle which came after (and thus potentially qualified) the statement of the rule in Poulton. However, instances of an exception where the assignee has “an interest in the suit” had been recognised at least as early as the decision of the English Court of Appeal in Ellis v Torrington [1920] 1 KB 399. In that case, also a case in contract, an assignment of the benefit of a covenant in a lease held to be sufficiently connected with enjoyment of the property so as not to be a bare right of action.
  • What is unclear to me is whether the existence of a genuine commercial interest in the enforcement of the assigned claim is properly considered as the basis for an exception to the rule in Poulton (regardless of the cause of action allegedly assigned) or, conversely, whether the unassignability of a bare right of action in tort remains beyond the reach of the exception recognised in Trendtex.
  • The existence of any sensible basis for drawing a distinction in that context between the position in tort and the position in contract has been doubted in this State: Rickard Constructions v Rickard Hails Moretti [2004] NSWSC 1041 at [42]-[61]; (2004) 220 ALR 267 at 280-285 per McDougall J. That decision sets out, comprehensively and with welcome clarity, the relevant principles and competing authorities. McDougall J concluded (at [53]) that, were it necessary to reach a concluded view, it would be that he was at liberty to depart, and should depart, from the dicta of the High Court in Poulton. It was not necessary to reach a concluded view because his Honour was not satisfied as to the existence of a sufficient interest (at [62]-[71]).
  • Interestingly, some support for his Honour’s analysis may be found in the joint judgment of Gummow and Bell JJ in Equuscorp at [79] and the dissenting judgment of Heydon J at [157]. Gummow and Bell JJ at [79] cited the decisions in Ellis v Torrington, Trendtex and Rickard Constructions as instances of “an exception” to the rule in Poulton. Heydon J at [157] similarly noted that Trendtex may elsewhere have been understood as an exception to the principle stated in the dicta in Poulton. However, Equuscorp was not specifically concerned with the question that arises in the present case and does not resolve it. The joint judgment of French CJ, Crennan and Kiefel JJ did not analyse the relevant principles in terms that shed any light on the present question: see [48]-[51].
  • Mr Williams, who appeared for the defendants, submitted that the weight of Australian authority supports the proposition that the rule in Poulton remains valid with respect to bare causes of action in tort. One of the decisions cited in support of that submission was Rickard Constructions at [53] but I think that overlooks the conclusion reached by McDougall J on that issue.
  • Separately, however, Mr Williams relied upon the following decisions: Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 2) [1994] FCA 1463 (unreported, 7 November 1994) at [7]-[8] per Beaumont J; National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (No 1) [1995] FCA 1628 at [131] per Lindgren J and Salfinger v Niugini Mining (Australia) Pty Ltd (No 3) [2007] FCA 1532 at [119] per Heerey J. Those decisions reinforce the obligation of single judges not to depart from the considered dicta of the High Court. McDougall J felt at liberty to do so in Rickard Constructions, but his Honour’s enjoyment of such freedom was unclouded by the later remarks of the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [130] and following, especially at [134].
  • Had the issue arisen for decision by me, I would have felt constrained to conclude that Kata-Lyn’s cause of action in tort against BMT was not capable of being assigned and, accordingly, that Mrs Kovarfi cannot maintain the cause of action.’
  • Lessons from a tome in the dome on the assignment of suits’ fruits
  • Solicitor litigants’ entitlement to costs
  • Equitable damages for breach of confidence, tortious invasion of privacy, breach of statutory duty: privacy legislation
  • High Court speaks on accrual of cause of action for negligence in pure economic loss case
  • Unrepresented barristers’ entitlement to costs in cases involving them personally

Print Friendly, PDF & Email

Leave a Reply Cancel reply

We use cookies to track usage of our site. Details of these can be found on our Cookie Policy . You may choose to decline all tracking cookies , but if you do some key features may not work as expected.

Agree & Close

Legal Articles

A basic guide to professional negligence claims.

Home / Knowledge base / A basic guide to professional negligence claims

Posted by Susan Hopcraft on 06 November 2013

Susan Hopcraft - Professional Negligence Lawyer

To make a  professional negligence claim  you need to show that a professional’s work fell below the normal standard. But that is not all: a key component of any professional negligence claim is to show loss. Often we are asked whether claims are viable and sometimes they are not because, even if the solicitor, accountant, financial adviser or surveyor did a dreadful job, causing considerable distress or inconvenience, unless that poor work actually caused a loss, there is no claim.

Essential elements

The essential elements of any professional negligence claim are:

  • That the professional owed you  a duty of care, which might arise because there is a contract between you and them, or because there was a particular relationship that gave rise to the need for that professional to be careful in their work.
  • That duty must have been breached by poor advice or work. The test is whether the professional did a poor job by comparing what a reasonably competent professional in their position would have done.
  • And the breach must have caused loss, whether to a physical asset or pure financial loss. 

If those elements can be shown – and often the question of whether the work fell below the normal standard is one that can only be answered by an expert in that area - then a claim can be made.

The first step is the pre-action protocol. A claim must be set out in a Letter of Claim, and the professional has three months in which to provide a reasoned reply. The parties are then expected to consider whether the claim can be resolved out of court. If that is not possible then a Claim Form can be issued at court. Once the parties have set out their cases in writing, the court will set up a timetable to resolve the dispute, dealing with a full exchange of relevant documents, an exchange of written recollections of the witnesses and opinions of experts and then a date for trial. Typically the whole process from the first letter of claim to a trial can take up to two years. At any stage mediation can be considered and for lower value claims (up to £150,000) possibly the Financial Ombudsman Service can be used to provide an independent assessment of the claim and award compensation instead of making a claim at court.

Damages - and sharing the blame 

If a claim succeeds then the negligent professional (who should usually have professional indemnity insurance) will be ordered to pay compensation. The aim is to put the claimant in the position they would have been in had the professional negligence not occurred. Sometimes if the professional believes the loss was also caused by or added to by the actions of the person claiming against them, then they can defend themselves by alleging ‘contributory negligence’. That can result in the amount of compensation being reduced to reflect the relative blame of each party. 

Usually the losing defendant also pays a high proportion of the claimant’s legal costs to make the claim. But, if the case is lost, then the person making the unsuccessful claim usually needs to pay the defendant’s costs – although that risk can often be insured in advance.

Time limits

Claims need to be made within 6 years of the date that loss was caused. Sometimes a claim can be made later if the loss was not known about: in that situation a claim can be made within 3 years of knowledge of the loss. These rules on time limits can be very difficult to apply in practice though so if you are concerned that you may have a professional negligence claim then it is best to seek legal advice sooner rather than later.

When you make a   professional negligence claim  you need an expert who really understands what you want to achieve and is committed to making the process as swift and effective as possible. We have a wealth of experience in doing just that and can offer flexible funding arrangements too.  

To discuss your issue in confidence and without obligation we look forward to hearing from you.

About the author

Susan Hopcraft

Recent articles

Commercial contract law banner

When it comes to Software Developers creating IP for customers (i.e. they enter into a contract with a customer to do so) there are some important caveats to include in the contract between parties, where IP cannot, or from a commercial perspective, should not, be assigned to the customer.

Legal Disputes and Litigation banner

For many people, finding love starts with a dating app. More than 10% of UK adults that use the internet participate in online dating. Online dating is big business and brand strategy is a key aspect of obtaining a share of this lucrative market Given the value of branding, brand protection is a vital component of protecting a business’ investment as well as its reputation and market share. These were all issues in the dispute that recently concluded in the Court of Appeal between a dominant player in the online dating market, Match Group LLC (Match) and Muzmatch, a disruptive innovator.

Corporate law

Our next podcast sees our Business Group join forces to discuss preparing for the sale of your business.

Sign up for updates

Contact one of our advisors now Email Call 0800 088 6004

What Are The Four Elements Of Professional Negligence?

Professional negligence may have occurred when an individual or organisation acting in a professional capacity has breached their duty of care towards a client, resulting in injury, damages or financial loss..

For a professional negligence claim to succeed, there are four key elements that must be proven;

  • that the professional owed you a duty of care, which might have arisen because a contract exists between the two of you;
  • this duty of care was breached by the actions of the professional e.g. through poor advice or incompetence;
  • that the breach caused you a loss whether it be financially, in health etc;
  • that any loss you incurred was a direct result of the professional’s breach.

In this article, the legal team at Wilson Browne explains how the four elements of professional negligence need to be proven in order to give you the best chance of winning your case.

What Does It Take to Prove Professional Negligence?

  • Duty of Care For a claim to be made, it’s important that a duty of care is established between the two parties involved in the dispute. Without this, there can be no claim of professional negligence. A duty of care exists when the law recognises that one party has a responsibility towards another. In the case of professional negligence, you could have a signed contract or agreement of work showing that you employed an individual or organisation in a professional capacity, and they therefore had a duty of care towards you, their client.
  • Breach of Duty of Care The basis of a professional negligence claim is that a duty of care has been breached by the party in a position of responsibility. Duty of care can be breached in many different ways, and that depends on the work you employed a professional to carry out. Broadly, a breach of duty of care may occur when the professional has failed in their responsibilities towards you; such as giving ill advice, not following your instructions correctly, failing to correctly sell or buy property, or making errors in legal documents.
  • Damages You may only pursue a claim of compensation for professional negligence if you can prove that you’ve suffered damages. This could be injury, a financial loss, or disruption to your career, professional or family life. Without proving that some form of damage exists, there are no grounds on which to claim financial compensation.
  • Causation Finally, it must be proven that any financial loss or damage sustained by you (the claimant) was the direct result of a professional breaching their duty of care towards you (their client). To prove these four elements, your case will need to be supported by appropriate documentation, evidence and witnesses to give you the strongest possible chance of a positive outcome.

Time Limits – Are there any?

Professional negligence cases have legal time limits attached to them. Claims need to be made within 6 years of the date that the loss occurred, however in some exceptional circumstances, this timeframe can be extended. Due to the tight time limits, it is best to seek legal advice sooner rather than later. Incidents of professional negligence are difficult and often complicated cases to prove, so it’s important that you seek professional advice from skilled lawyers before pursuing a claim.

Contact our expert team of professional negligence lawyers today to find out more about how Wilson Browne Solicitors can help you to pursue a professional negligence claim.

  • What Makes Us Different
  • Management Board
  • Management Team
  • Responsible Business
  • Diversity, Equity & Inclusion
  • By Department
  • By Situation
  • By Specialist Group

Kingsley Napley

  • - Banking and Finance
  • - Capital Markets
  • - Commercial Contracts
  • - Mergers and Acquisitions: Buying Another Business
  • - Mergers and Acquisitions: Selling Your Business
  • - Setting up Your Business and Becoming a Director
  • - Startup Investments
  • - Technology Law
  • - Corporate & Insurance Panel Costs Auditing
  • - Costs in Arbitration Proceedings
  • - Litigation Management
  • - Criminal Defence and Police Investigations
  • - FCA Investigations
  • - INTERPOL Red Notices and Extradition
  • - Investigations
  • - Proceeds of Crime and Money Laundering
  • - White Collar and Financial Crime
  • - Civil Fraud and Investigations
  • - Commercial and Contract Disputes
  • - Farms and Estates Disputes
  • - Financial Services Disputes
  • - Injunctions
  • - International and Cross-Border Disputes
  • - Professional Negligence
  • - Reputation and Media
  • - Shareholder and Director Disputes
  • - Tax Disputes and Investigations
  • - Trust and Estate Disputes
  • - Disciplinary and grievance procedures, absence and performance management
  • - Discrimination claims
  • - Employers
  • - Employment contracts, policies and procedures
  • - Employment disputes and litigation
  • - Executives
  • - Flexible working and family friendly rights at work
  • - GDPR and data protection
  • - Global mobility and employment law
  • - Partnerships and LLPs
  • - Restrictive covenants and team moves
  • - Senior managers and certification regime
  • - Terminations and settlement agreements
  • - Transactions, redundancies, restructurings and outsourcing
  • - Workplace investigations and whistleblowing
  • - Alternatives to Litigation
  • - Considering Divorce or Separation
  • - Getting Married
  • - International Family Law
  • - Modern Families
  • - Thinking about the Children
  • - Applying for a sponsor licence
  • - Bringing Your Family to the UK
  • - British citizens travelling to the EU for business: What employers need to know
  • - Challenging Home Office Decisions
  • - Compliance and audit
  • - European Citizens and Their Families
  • - Expanding Your Business into the UK
  • - Global Talent
  • - High Potential Individual
  • - Human Rights and Asylum
  • - Kingsley Napley's Global Immigration Network
  • - Immigration advice for Entrepreneurs and UK Startups
  • - Obtaining British Citizenship and Staying Permanently
  • - Skilled Worker visas and sponsor licences: A guide for employers
  • - Sponsoring and Hiring Foreign Nationals
  • - Strategic Immigration Support for HR Teams
  • - Temporary work
  • - Tier 1 Investor Programme
  • - Visiting the UK
  • - Visiting the UK for business
  • - Brain Injury Claims
  • - Cerebral Palsy, Birth Injury and Paediatric Claims
  • - Child Injury (Paediatric) Claims
  • - Court of Protection and Deputyship
  • - Death and Fatal Accident Claims
  • - Hospital Negligence Claims
  • - Limb Amputation Claims
  • - Misdiagnosis Claims
  • - Personal Injury Claims
  • - Sepsis Claims
  • - Spinal Injury Claims
  • - Visual and Sensory Impairment Claims
  • - International Personal Tax and Succession Planning
  • - Landed Estates and Heritage Property
  • - Probate and Estate Administration
  • - Succession Planning and Inheritance Tax
  • - Wills and Lasting Powers of Attorney (LPA)
  • - Business and Human Rights
  • - Freedom of Information/Environmental Information
  • - Judicial Review
  • - Public Inquiries
  • - Public Policy and Governance
  • - Select Committees
  • - Commercial Real Estate
  • - Construction and Engineering
  • - Real Estate Litigation
  • - Residential Real Estate
  • - Advice for Professionals
  • - Advice for Regulators and Public Bodies
  • - Advising Chambers, Barristers and Judges
  • - Advising Solicitors and Law Firms
  • - Defending Accountants and Accountancy Firms
  • - Legal Defence for Healthcare Professionals
  • - Licensing, Hospitality and Leisure
  • - Setting up a healthcare practice
  • - Students and Universities
  • - Restructuring Advisory Services
  • - Directors, Officers and Executives
  • - Distressed Investors & Lenders
  • - Insolvency Practitioners
  • - Accountants & IFAs
  • - Creditors
  • Art and Creative Media
  • Charities - Litigation, Crisis & Investigations
  • - Applications for Registration in Financial Services
  • - Private Wealth Disputes
  • Property & Construction
  • Regulated Professionals
  • Tax Law and HMRC
  • Coronavirus (COVID-19)
  • Built Environment
  • Buying or Selling your Business
  • Challenging Professional Conduct
  • Contractual Matters
  • Dealing with an Investigation
  • Dealing with Disputes and Claims
  • Defending an Allegation
  • Hybrid Working
  • Investing in the UK
  • Moving to the UK
  • Online Safety
  • Political Affairs
  • Protecting your Assets
  • Protecting your Reputation
  • Responding to a Data Leak
  • Sexual Misconduct in the Workplace

Specialist Group

  • American Services
  • Anglo-French Services
  • Banking and Finance
  • - Brexit - What EU citizens living in the UK need to know
  • Crypto, Digital Assets and NFTs
  • - GDPR Compliance
  • - Dealing with a Data Breach
  • - Responding to a Data Leak
  • Directors, Officers & Shareholders
  • Dubai & UAE Services
  • Employee Incentives
  • Entrepreneurs
  • Environmental, Social and Governance (ESG)
  • Fire Safety Law
  • International Families
  • International Protection
  • Legal Services for Accountants
  • Safeguarding
  • Services anglo-français de Kingsley Napley

Services A-Z       Pricing

  • Anglo-French
  • Corporate and Commercial Law
  • Criminal Law
  • Crypto assets
  • Data Protection
  • Defending Professionals Law
  • Directors & Officers
  • Dispute Resolution Law
  • Diversity Matters
  • Employment Law
  • Financial Services
  • Giving Something Back
  • Immigration Law
  • Legal Services Regulation
  • Litigation for Charities
  • Medical Negligence and Personal Injury
  • Private Client Law
  • Real Estate Law
  • Trainee Solicitor

13 December 2023

Economic crime and corporate transparency act (eccta): a practical guide for law firms, 12 december 2023, unprofessional behaviour in accountancy firms: regulatory implications and internal investigations, 28 november 2023, are defendants adequately supported through the criminal justice system, 23 november 2023, breakfast with kingsley napley and collas crill, 16 november 2023, safeguarding assets across borders, statutory registers podcast, james bell meets paul whiteing: part 1 - the duty of candour.

Show all talks

It’s a fix! The Fixed Recoverable Costs regime and the impact on professional negligence claims

23 october 2023.

The 1 October 2023 saw the Fixed Recoverable Costs (“FRC”) regime extend beyond personal injury claims in the fast track to almost every area of civil litigation, including professional negligence, and sees the introduction of a new Intermediate Track.

We address in this article, the impact of the FRC regime on Professional Negligence claims, and how this affects the recoverability of costs.

The FRC Regime

With few exemptions, the new FRC regime is intended to control costs in advance by affording parties better visibility as to recoverable costs. Its proponents argue that as a result, legal expenditure will become more certain and FRC will lead to an increase in access to justice and facilitate earlier resolution to disputes.

In addition to the FRC regime applying to professional negligence claims falling within the existing Fast Track threshold (for pleaded damages between £10,000 and £25,000), the newly created Intermediate Track will accommodate claims worth between £25,000 and £100,000 (CPR Part 26.9 (7)-(9)). It will also apply where cases can be tried within three days or less and where there are no more than two expert witnesses giving evidence for each side.

Within the Fast and Intermediate tracks, cases will now be allocated to one of four complexity bands and each complexity band, plus the stage the claim has reached, will determine the level of costs recoverable for each stage of the claim. The higher band the claim is assigned to, the higher the level of recoverable costs.

Fast Track Cases

For the Fast Track, Professional Negligence Claims fall within complexity “Band 4”, i.e. the highest Band.

Practice Direction 45 of the CPR (Table 12) sets out the relevant fixed costs for fast track claims and can be found here .

By way of example, as Professional Negligence cases fall within Band 4, if a claim was allocated to this track and was to settle before issuing proceedings the recoverable costs are £2,600 plus an amount equivalent to 15% of the damages plus £510 per extra defendant.

If the claim is disposed of at trial, the recoverable costs are fixed as £7,900 plus a trial advocacy fee (of between £580 to £2,900) and an amount equivalent to 40% of the damages agreed or awarded plus £760 per extra defendant.

Intermediate Track Cases

For the new Intermediate Track, the relevant bands and how these apply to professional negligence claims are less straightforward.

CPR 26.16 (Table 2) of sets out how claims in the Intermediate Track should be assigned and is as follows:

  • Band 1 : Any claim where only one issue is in dispute; and the trial is not expected to last longer than one day, including: (i) road traffic accident related, non-personal injury claims; and (ii) defended debt claims.
  • Band 2 : Any less complex claim where more than one issue is in dispute, including personal injury accident claims where liability and quantum are in dispute.
  • Band 3 : Any more complex claim where more than one issue is in dispute, but which is unsuitable for assignment to complexity band 2, including noise induced hearing loss and other employer’s liability disease claims.
  • Band 4 : Any claim which would normally be allocated to the intermediate track, but which is unsuitable for assignment to complexity bands 1 to 3, including any personal injury claim where there are serious issues of fact or law.

However, the guidance on how the above banding applies in practice is limited. For example, what exactly does “one issue” mean in the context of professional negligence cases i.e. would liability be “one issue” (regardless of issues relating to breach and causation)? How is a determination to be made for professional negligence claims where there is more than one issue in dispute? How is the extent to which Band 2 and/or 3 are unsuitable for the claim determined?

To the extent the parties cannot agree on the complexity band, the matter will fall to be determined by the Court at the allocation stage. Although the court retains a broader discretion to re-assign the claim to an alternative track after allocation, once directions have been set the chance of a claim being re-assigned to an alternative track is significantly reduced. The need to establish a fundamental change to the claim is required in order to re-assign a claim to an alternative track after directions are set.

Practice Direction 45 of the CPR (Table 14) sets out the relevant fixed costs for the new Intermediate Track and can be found here .

By way of example, the recoverable costs for stage 1 (pre-issue to service of the defence) for each of the four complexity bandings is set out below.

There is a concern, taking the above table as an example, that the new regime is not in line with the objectives of the Professional Negligence Protocol which is geared towards the early exchange of information with a view to settling claims at an early stage (saving cost and time) so as to avoid the need to issue proceedings. However, the new regime has the potential to undermine this objective as fixed costs apply (for stage 1) from the pre-action stage up until the service of a defence. Therefore, as soon as liability is denied, there is little incentive for the parties to try and resolve the dispute at the pre-action stage and it is arguable that this will lead to more claims being issued as claimants try and maximise their costs recoverability for this stage.

For larger and more complex professional negligence cases, FRC’s will not apply and claims will be allocated to the multi-track in the usual way. That said, Judges have retained the discretion to allocate more complex claims, which are valued at under £100,000, to the multi-track so that these cases will not inappropriately be captured by the extended FRC regime.

Whilst many welcome the widening of the FRC regime on the basis that it brings certainty to costs recoverability and exposure, the extension and application of the regime beyond personal injury claims is not without controversy.

What this means in practice for Professional Negligence claims remains to be seen but it is clear that parties will need to prepare early and think carefully about cost considerations before commencing litigation. On the one hand this may result in swifter settlements (although noting the concern outlined above about the potential for more issued claims). In other cases, it may exclude valid claims as there may be too significant a shortfall between the costs incurred and the costs ultimately recovered under the regime for them to consider it worthwhile pursuing a claim.

There is also likely to be an inevitable period of uncertainty as practitioners and the Court work through the new regime and how this applies in practice to their cases. This is likely to result in satellite litigation (particularly in respect of the allocation of the bandings due to the significant cost implications) in the short term which will have the effect of increasing costs.

Further information

If you have any questions regarding this blog, please contact Jemma Brimblecombe  in our Dispute Resolution team or Holly Shaw in our costs team.

About the authors

Jemma is a Legal Director in the  Dispute Resolution  team. She has a wide range of experience in dealing with a variety of commercial disputes, including breach of contract, breach of trust and contractual disputes. Jemma also has experience of dealing with civil fraud claims.

Holly joined Kingsley Napley in 2014 and is an Associate in the Costs team. Holly’s practice covers a wide range of civil litigation, with a particular focus on costs in defamation and privacy proceedings.

assignment of professional negligence claim

Jemma Brimblecombe

Legal Director

(+44) 020 3535 1570

[email protected], connect on linkedin, download vcard, 02075665262, [email protected], subscribe to blog rss feed, subscribe to all blog rss feeds, email this page to a friend.

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page .

Leave a comment

You may also be interested in:, driving change for race equality week 2024.

Daniel Zona

Reflections on the impact for fertility patients of faulty freezing solution

No children – i don’t need to think about succession and wealth planning, do i, let us take it from here., +44 (0)20 7814 1200.

[email protected]

Connect With KN Linked in .cls-1 { fill: #fff; fill-rule: evenodd; } Twitter .cls-1{fill:#FFFFFF;}

Subscribe to our mailing list.

  • Services A-Z
  • Press Releases
  • KN in the News
  • Why Work for Us
  • Legal Vacancies
  • Non-legal Vacancies
  • How to Find Us
  • Join Our Mailing List

Legal Notices  |  Privacy Notice  |  Fraud Warning  |  Modern Slavery Statement  |  Complaints  |  Website Terms  |  Cookie Policy  |  Accessibility  |  Site Map

© 2024 Kingsley Napley LLP. All rights reserved. Authorised and regulated by the Solicitors Regulation Authority, registration number 500046.

Skip to content Home About Us Insights Services Contact Accessibility

  • Select location
  • United Kingdom
  • United States
  • Southampton
  • Charlottesville
  • Los Angeles
  • San Francisco
  • Silicon Valley
  • Research Triangle Park
  • Washington, D.C.
  • Winston-Salem

Map

  • Energy & Natural Resources
  • Financial Institutions
  • Life Sciences & Pharmaceuticals
  • Manufacturing
  • Private Wealth
  • Public, Government Services & Third Sector
  • Real Estate
  • Retail & Hospitality
  • Digital: IT & Privacy
  • Dispute Resolution & Litigation
  • Employment & Pensions
  • Finance: Banking, Restructuring, Insolvency
  • Intellectual Property
  • Projects, Construction & Infrastructure
  • Alternative Business & Legal Solutions
  • Timelines and Processes

Womble Bond Dickinson advises Bovill on acquisition by Ocorian

Womble bond dickinson shortlisted in eight categories at the legal 500 esg uk awards, room for international growth in west yorkshire's healthcare and life sciences sectors, what you need to know about heat networks, accelerating future aims as wbd helps the aa motor into a new home, cyber security in the pensions sector, spring update for charities.

22 Feb 2024 12:30 PM - 2:30 PM GMT (UTC+0)

Retail Speak HR Hybrid Event

27 Feb 2024 11 AM - 1 PM GMT (UTC+0)

Life sciences and pharma: unlocking finance and funding

12 Mar 2024 9:30 AM - 12:30 PM GMT (UTC+0)

Claims handlers' guide to settlement agreements

Contributors.

Sushma MacGeogh

Sushma MacGeoch

Does a settlement agreement bring finality to a dispute? It should. But there are occasions when a party will seek to 'unpick' an agreement. So once a deal has been struck, how can you be sure that the claim has really gone away? With settlements increasingly negotiated directly between claimants and insurers, here are our top tips for claims handlers finalising settlement agreements. 

Make it "subject to contract"

In the heat of negotiating a settlement, remember to make it clear that any deal is "subject to contract". This will avoid the situation where an interim settlement agreement becomes binding immediately as happened in Balbir Singh Chaggar v (1) Raghbir Singh Chaggar (2) Hi-Tech Autoparts Limited [2018] EWHC 1203 (QB).

In that case, the claimant and his brother, the second defendant, had a long-running dispute over the running of their business. This led to the claimant instructing the bank to freeze the business bank account. The brothers subsequently agreed to a deal whereby the claimant's share of the business would be bought out by his brother for £1.6 million. As part of the deal, the claimant agreed to instruct the bank to unfreeze the business bank account upon payment of an initial dividend. The brothers entered into an initial settlement agreement setting out these key terms which enabled the bank account to be unfrozen following payment of the initial dividend. However, the brothers were unable to agree detailed settlement terms as envisaged and the deal did not complete. The claimant issued proceedings to recover the amount agreed under the initial agreement. His brother contended, amongst other things, that the initial settlement agreement was not binding. The court disagreed. It held that the parties to an agreement might intend to be bound immediately even though there were further terms still to be agreed or some further formality to be fulfilled. The absence of a detailed settlement agreement was not an issue because the initial agreement was workable and certain, and consequently enforceable by the claimant.

Whose agreement is it?

It may sound obvious but check that the agreement names the correct parties. 

From a defendant's point of view, the settlement agreement should set out all the potential claimants to a claim. For example, in a professional negligence claim arising from a corporate transaction, check that you have got the right corporate entity and also name any other entity with a potential right to claim. 

Equally, has the correct defendant been named? If the claim is against a firm, the correct party will be the party at the time the cause of action accrued. However, consider whether you should name the successor firm or LLP as well to avoid any doubt. Joint defendants and third parties may also need to be added if they are party to the settlement.

If a claim has been assigned, review the assignment agreement and consider whether anyone else with an interest in the claim should be named in the settlement. Similarly, related parties such as a parent company, subsidiary or director may need to be included. 

Do they have authority to settle?

Once you have identified the correct parties, check whether the person purporting to bind the party has authority to do so. It is usually safe to assume that a director of a company, a member of an LLP and a partner of a firm has authority but, if there is any doubt, check the point.

Equally, individuals must have capacity to enter into an agreement. This means under 18s and those lacking capacity because of illness or disability cannot enter into a binding agreement.

What are you settling?

Are you settling just the claim or is there a counterclaim, a right of set-off or a potential claim to consider? This is also relevant when drafting the release clause which is discussed below. 

The claim could be defined by reference to a Letter of Claim but consider whether this is wide enough. For example, have other issues been raised in correspondence which should be settled too? 

What about a professional defendant's outstanding fees? Check that the defendant agrees to forfeit these fees.

What about future claims? The defendant will generally want to settle all potential future claims which the claimant may have against it. This will often be acceptable to the claimant but sometimes a claimant will require a carve-out for a claim which it is not yet able to pursue for whatever reason. 

Sometimes relationships will be so strained that the parties will want to settle all claims or matters connected with the very relationship between them. In that case, the definition of claim should be extended as appropriate. 

Who does what and when?

Normally a settlement agreement requires one party to pay another an agreed sum by a certain date. Sometimes the claimant will require the settlement to be conditional on the payment of the settlement sum by a particular date or other agreed action.

Again this is stating the obvious but check the settlement sum. Is the figure correct? Does it include interest, legal costs and VAT? If so, say so. 

Conversely, if the settlement is not fully inclusive, the agreement should say so. If costs are to be assessed if not agreed, consider the impact of the fixed costs regime in lower value claims; make it clear whether the agreement to pay costs is subject to fixed costs or standard costs. If the claim is being litigated, remember to deal with any interim costs orders.

Does the settlement attract a tax liability? Sometimes VAT is payable. Capital gains tax may be payable on damages over the value of £500,000 although claimants in professional negligence cases can apply for an exemption. However, if tax is payable, consider whether there needs to be a tax indemnity or other provision to deal with this. 

The agreement should set out precisely how the settlement sum is to be paid. This is usually by bank transfer to the claimant's solicitor's bank account. Best practice is to avoid specifying the bank account details in the agreement unless all parties are exchanging the settlement agreement via secure means. Otherwise, the bank account details are at risk of interception by fraudsters. Sometimes a party may prefer payment to be made by a cheque to be received by a certain date. 

Most insurers prefer 21-28 days to process payments and, if there is a following market, longer may be required. For that reason, consider carefully the date payment is to be made by and consult with the paying parties. From insurers' perspective, time of the essence clauses are to be avoided as well as interest for overdue payments. 

Sometimes the parties will agree an alternative form of compensation either in addition to or instead of payment of a settlement sum. This could be, for example, an assignment of a cause of action. The settlement agreement should also record the parties' rights and obligations in connection with any such additional or alternative concession.

What is the effect of the settlement?

At its most basic, the effect of the settlement is that all parties wipe the slate clean in relation to the issues in dispute. 

Quite often a defendant will also want to be released from future potential claims. A wide and clearly drafted release clause can provide a defence to a later claim even though neither party is aware of the potential later claim at the time of the settlement agreement: Khanty-Mansiysk Recoveries Ltd v Forsters LLP [2018] EWCA Civ 89. 

In that case, a firm of solicitors entered into a settlement agreement with a former client following a fee dispute arising out of work carried out in relation to the acquisition of an oil exploration opportunity in Russia. Part of that process involved a share purchase agreement to acquire a Russian company.

The settlement agreement provided that it was:

"in full and final settlement of all or any Claims which the Parties have, or could have had, against each other (whether in existence now or coming into existence at some time in the future, and whether or not in the contemplation of the Parties at the date hereof)". 

The term "Claims" was defined as including "any claim or cause of action ……whether known or unknown, suspected or unsuspected."

It subsequently transpired that the share purchase agreement had never been effected in Russian law. As a result, the former client brought a claim against the solicitor for professional negligence. The solicitor contended that the settlement agreement settled any potential professional negligence claim. The Court of Appeal agreed. The words of the agreement were wide and clear enough to cover a later claim in negligence and breach of contract, regardless of the fact that the parties had not known that there was a claim in negligence. The parties could reasonably have envisaged that a professional negligence claim could arise in connection with the services relating to the invoice. 

However, claims which cannot be known as a matter of law would not be excluded. There is a distinction in this context between claims which cannot be known as a matter of law (which cannot be excluded) and claims which the parties merely did not consider would arise (which can be excluded).

Sometimes a narrower scope of release is more appropriate such as one which limits the release to the claim or service as defined. This may be true, for example, if there is an ongoing business relationship. 

Confidentiality

A confidentiality clause is commonplace especially in disputes involving professionals. Typically, this will be drafted to allow disclosure of the settlement to insurers, brokers, accountants/auditors, HMRC and any other carve-outs deemed necessary. 

No admission of liability

Defendants often insist on a provision making clear that there is no admission of liability. This may be a particular issue where liability has been contested throughout and the claim is being settled on a commercial basis. 

Standard terms 

In addition to the above, most agreements will have standard clauses to cover, for example, governing law and jurisdiction. Consider whether such standard clauses might be used. For example, an indemnity clause may be sensible if there is a possibility of the claim resurfacing in a different form. A clause dealing with the acceptability of counterparts is also useful in most cases. 

Other steps to consider

If there is litigation in the background, settlement will need to be dealt with usually by way of a Tomlin Order, with settlement terms attached as a schedule to the order. 

Sometimes, a deed may be required instead of a settlement agreement. This will be the case if, for example, no consideration is passing between the parties.

Professional Risks Disputes

Dispute resolution and litigation, womble bond dickinson insights.

Sign up to receive the latest news, events and e-alerts

Recommended

Civil penalties for illegal working set to triple on 13 february 2024, what to expect in uk immigration law in 2024, navigating the future of legal industry: insights on legal tech and ai, drop-in dropout: local authority decision to grant a 'drop in' application quashed, the energy act 2023 – what does it mean for manufacturers and teesside, seeking investment from individuals changes to financial promotion exemptions, distributing tips fairly: have you responded to the government consultation yet, motor vehicle finance – the next ppi, building safety – what a difference a year makes.

You are switching to the United States

This selection will switch the website from presenting information primarily about the United Kingdom to information about the United States . If you would like to switch back, you may use location selection options at the top of the page.

Although we would like to hear from you, we cannot represent you until we know that doing so will not create a conflict of interest. Also, we cannot treat unsolicited information as confidential. Accordingly, please do not send us any information about any legal matter until we authorize you to do so. To initiate a possible representation, please call one of our lawyers or staff members.

By clicking the “ACCEPT” button, you agree that we may review any information you transmit to us. You recognize that, even if you submit information that you consider confidential in an effort to retain us, our review of that information will not create an obligation on us to keep it confidential and will not preclude us from representing another client directly adverse to you, even in a matter where that information could and will be used against you.

Please click the “ACCEPT” button if you understand and accept the foregoing statement and wish to proceed.

Academia.edu no longer supports Internet Explorer.

To browse Academia.edu and the wider internet faster and more securely, please take a few seconds to  upgrade your browser .

Enter the email address you signed up with and we'll email you a reset link.

  • We're Hiring!
  • Help Center

paper cover thumbnail

negligence Assignment

Profile image of mohamed ali

Related Papers

Dafe M Ugbeta

assignment of professional negligence claim

Richard W Wright

MALAY KR GHOSHAL KUMAR OF SUNDERBANS

The Cambridge Law Journal

Paula Giliker

jeremy horder

Chun Yu Wong

Annual Survey of Massachusetts Law

George Harrison

Dawn Harvey

Shiena Amodia

The paper has dual aim: to analyse the structure of negligence, and to use it to offer an explanation of responsibility (for actions, omissions, consequences) in terms of the relations which must exist between the action (omission, etc.) and the agents powers of rational agency if the agent is responsible for the action. The discussion involves reflections on the relations between the law and the morality of negligence, the difference between negligence and strict liability, the role of excuses and the grounds of duties to pay damages.

RELATED PAPERS

International Journal of Waste Resources

Slamet budi prayitno

Coşkun Firat

Sustainability

Fulgencio Sánchez Vera

Boosadan Boosadan

Constantino Pereira Martins

Educação Profissional e Tecnológica: Práticas, organização e memórias

Josimar Vieira

Drazenka Blazi

International Journal of Enteric Pathogens

elham moazamian

Asia Proceedings of Social Sciences

Abdullah Musa Cledumas

Pierre Grenand

ler.letras.up.pt

Licínia Balkeståhl

Metabolites

Jolanta Jaroszuk-Ściseł

education policy analysis archives

Maria Lozano Estivalis

Italian Journal of Animal Science

Edo D'Agaro

Ayubi Mazhabi

Milica Mustur

Natural Hazards

Jinn-chuang Yang

Wiley Interdisciplinary Reviews-nanomedicine and Nanobiotechnology

Olivia Merkel

Biology of Sex Differences

Espiridión Ramos-Martínez

定制 CDU毕业证 li

International Journal of Sports Physiology and Performance

Karim Chamari

Anas Maulana

کتابداری و اطلاع‌رسانی

Fatima Fahimnia

hjfgh fgdgred

  •   We're Hiring!
  •   Help Center
  • Find new research papers in:
  • Health Sciences
  • Earth Sciences
  • Cognitive Science
  • Mathematics
  • Computer Science
  • Academia ©2024
  • Manage your subscription
  • Manage payment method
  • Renew your subscription

Turn recurring billing on or off

  • When subscription expires
  • Cancel Microsoft 365
  • Share Microsoft 365 Family
  • Stop sharing Microsoft 365 Family
  • You received an invitation to share
  • Switch between Microsoft 365 subscriptions
  • Switch to a business subscription
  • Transfer to a different Microsoft account
  • About accounts
  • Sign in to Microsoft 365
  • Why you need to sign in
  • Forgot account or password
  • Get started at Microsoft 365.com
  • Meet the Microsoft 365 app launcher
  • Check version
  • Microsoft 365 for home or business
  • What business product do I have?
  • Difference between Microsoft 365 and Office 2021
  • Difference between home and business plans
  • Difference between Microsoft 365 and free web apps
  • Can't install or manage Office or Microsoft 365
  • Parental permission when signing in to Office or Microsoft 365

assignment of professional negligence claim

Manage your Microsoft 365 subscription or Office product

For most Microsoft 365 subscriptions and versions of Office (2013 and later), you need to associate an account with your product. This is the account you use to sign in to Microsoft365.com and what you use to install or reinstall the apps, or to manage your subscription. Depending on your product, this account can be a personal Microsoft account (such as Hotmail.com, Outlook.com, Live.com), or a work or school account assigned by someone in your organization.

Note:  Some products purchased through an employee  Microsoft Workplace Discount Program  (formerly known as Home Use Program) benefit or volume license versions (managed by an organization's IT department) might not require an account. The information below doesn't apply to these Office versions or Microsoft 365 subscriptions.

Sign in to the dashboard for your account

Open a desktop app like Word or Excel, or go to Microsoft365.com .

Tip:  You might be prompted to sign in. Make sure to sign in with the account associated with Microsoft 365 or Office. If you can’t remember which email address you associated with your subscription or Office product, see I can't remember the Microsoft account I use with Microsoft 365 .

From the header, select your Account manager .

Depending on your account type, select  My Microsoft account or  View  account .

Your account dashboard is displayed and what you can do next depends on if you're signed in with a Microsoft account , or a work or school account .

Select the tab below for the type of account you're signed in with.

If you selected My Microsoft account , the Microsoft account dashboard will open. This is where you manage your Microsoft account and any Microsoft products associated with this account.

On the Microsoft account dashboard, select  Services & subscriptions to view all Microsoft products associated with this account. 

For non-subscription versions of Office (such as Office 2013 and later): Find your Office product and select Install . Follow the prompts to install or reinstall the desktop apps.

For Microsoft 365 Family or Personal subscriptions: Select Install premium Microsoft 365 apps and follow the prompts to install or reinstall the desktop apps.

On the Microsoft 365 subscription tab, select Manage . From here you can:

Renew your subscription with a prepaid code or card

Cancel a subscription

For Microsoft 365 Family subscriptions, you can start sharing your subscription, and add or remove people you're already sharing with. If you're not the subscription owner, you can see who's sharing Microsoft 365 with you, or choose to leave the subscription.

If you selected View account , the  My Account dashboard for your work or school account will open. Here you can:

Install and manage your apps. On the Office apps card, select Manage , and select Install to install or reinstall the latest desktop apps, or other apps such as Project or Visio. (An install option is available as long as your admin assigned you a license and gave you permission to self-install.)

Manage your devices.

View your subscriptions, and any other licenses assigned to you.

Note:  For Microsoft 365 admins only     If you're the Microsoft 365 admin in your organization, you control what you want your users to have access to. Go to the Microsoft 365 Admin help center for more information about setting up users.

Facebook

Need more help?

Want more options.

Explore subscription benefits, browse training courses, learn how to secure your device, and more.

assignment of professional negligence claim

Microsoft 365 subscription benefits

assignment of professional negligence claim

Microsoft 365 training

assignment of professional negligence claim

Microsoft security

assignment of professional negligence claim

Accessibility center

Communities help you ask and answer questions, give feedback, and hear from experts with rich knowledge.

assignment of professional negligence claim

Ask the Microsoft Community

assignment of professional negligence claim

Microsoft Tech Community

assignment of professional negligence claim

Windows Insiders

Microsoft 365 Insiders

Find solutions to common problems or get help from a support agent.

assignment of professional negligence claim

Online support

Was this information helpful?

Thank you for your feedback.

IMAGES

  1. Particulars of Claim- Thompson V Brightwell & Bryant-professional

    assignment of professional negligence claim

  2. Professional Negligence • Lazarus & Lazarus

    assignment of professional negligence claim

  3. Negligence Answer Format

    assignment of professional negligence claim

  4. Making a Professional Negligence Claim

    assignment of professional negligence claim

  5. Everything About Professional Negligence Claim

    assignment of professional negligence claim

  6. negligence liability Doc Template

    assignment of professional negligence claim

VIDEO

  1. Lecture by Ms. Kumud Lata Das, Advocate, on the topic “Medical Negligence”

  2. 8 Claims lecture 8

  3. 2 Claims lecture 2

  4. Administrative Law Mid-Term Assessment Q&A

  5. Part 2 Assignment Professional Dialect

  6. Professional negligence possible in Tokyo runway collision

COMMENTS

  1. Assignment of Legal Malpractice Claim

    The decision also outlines the factors a court considers when determining whether legal malpractice claim assignment is appropriate, including: (1) judicial estoppel; and (2) public policy implications. ... Plaintiff's motion to the extent that "any and all rights to any prospective cause of action arising from the professional negligence ...

  2. Claim for Professional Negligence: Your Key Questions Answered

    Your key questions answered. This user-friendly guide is intended to provide helpful information for anyone contemplating a claim for professional negligence. Within it we have listed the numerous and wide-ranging questions we commonly get asked as specialists in our field, with accompanying answers that can be accessed on a drop-down basis.

  3. Is the Door Opening on the Assignment of Legal Malpractice Claims

    The claim of impermissible assignment was raised by the attorney. But the Supreme Court rejected this claim and found that while legal malpractice claims are generally not assignable, where the legal malpractice claim is transferred in a commercial transaction along with other assets and liabilities, then the claim can be assigned. (Id. at 668.)

  4. Can I Assign my Legal Malpractice Claim?

    The Court's answer was "No" for reasons of policy, but assignments of legal malpractice claims can occur in many contexts, not all of which violate the public policy concerns expressed in Skipper, which deals with an assignment between adversaries. Skipper arose from an accident between Skipper's vehicle and a logging truck driven by ...

  5. Making a Professional Negligence Claim: Guide for Businesses

    Professional negligence is the failure of a third-party professional advisor who has been commissioned to undertake a particular assignment, usually under a contractual agreement or set out by common law. and they have failed to act with the duty of care that is reasonably expected of a professional within their sector.

  6. Professional liability claims and lawsuit examples

    Or call us at (800) 688-1984. EXPLORE ON INSUREON. Professional liability insurance for independent contractors General liability vs. professional liability insurance. SHARE THIS ARTICLE. Negligence and breach of contract are the reasons behind many professional liability claims and lawsuits. Get free quotes and buy online with Insureon.

  7. Claims For P/C Broker Negligence Assignable and Enforcement by Assignee

    A California intermediate appellate court has reaffirmed that a client's professional negligence claim against his or her property/casualty insurance broker is freely assignable. It held, also ...

  8. Compensation For Professional Negligence: What can I recover?

    Conclusion. As the above case examples should demonstrate, in professional negligence claims compensation can be recovered for a variety of different types of loss. While some of these losses can be recovered simultaneously, others cannot, particularly if this would result in 'double' recovery. While the courts have favoured certain ...

  9. PDF BASICS OF PROFESSIONAL NEGLIGENCE

    malpractice, alleging. negligence. or unskillfulness, sounds in contract (agency) and, in the case of an oral agreement, is subject to the four-year statute of limitations in OCGA § 9-3-25. Such a cause of action (can) also sound in tort and, thus, be subject to the one-year and/or two-year limitation of OCGA § 9-3-33.

  10. PDF Commercial division update: Navigating common law indemnification claims

    indemnity, breach of contract, and professional negligence, and cross-claims against the construction company for contractual indemnity, common law indemnity, and breach ... the court upheld defendant's assignment of its common law indemnification claims. Conclusion As recent Commercial Division cases illustrate, to pursue

  11. Privity and Assignment of Legal Malpractice Claims

    Comment: Limits on the Privity and Assignment of Legal Malpractice Claims. Tom W. Bell. 59 U. Chi. L. Rev. 1533 (1992) An assault on privity has swept through much of tort law in the United States, freeing plaintiffs to press charges of negligence against even those with whom they have never had contractual relations.

  12. 4 Elements of a Negligence Claim (and more)

    Under Colorado law, there are four elements to a claim for negligence: The existence of a legal duty to the plaintiff; The defendant breached that duty; The plaintiff was injured; and, The defendant's breach of duty caused the injury. Raleigh v. Performance Plumbing & Heating, 130 P.3d 1011, 1015 (Colo. 2006). For a plaintiff to succeed at ...

  13. Arizona Supreme Court Holds Professional Negligence Against Insurance

    Surprising result in Webb v. Gittlen, a new opinion from the Arizona Supreme Court which holds that a professional negligence claim against an insurance agent is assignable. Although a long overdue holding, it highlights the badly misunderstood law concerning assignments, including the scope and justification of anti-assignment law (see my earlier article on Assignments vs. Liens in the...

  14. Professional Liability

    Negligence claims were also asserted, which were identical except that it was alleged that the architect failed to comply with professional standards of care. The court found that, while under certain circumstances a professional architect may be subject to a tort claim, the only damages alleged were within the contemplation of the parties ...

  15. What Is Negligence? Definition & Examples

    Learn what negligence is, the different types of negligence, and the elements of negligence that must be proved within the context of a personal injury claim.

  16. Defending a professional negligence claim: a guide for solicitors

    A practical guide for solicitors who are instructed to defend a claim in negligence against a professional. It covers the following stages of a claim: pre-action issues (including the professional negligence pre-action protocol), evidence, privilege, and settlement. As many professionals have professional indemnity insurance, the note covers some of the issues that may arise when acting for ...

  17. Professional negligence claims—claimant steps—checklist

    His work includes: ' policy advice ' lender claims ' equity and breach of trust claims ' breach of undertaking or warranty of authority ' negligence Prior to 2002 when he began working in this area of the law, Steven acted for insurers defending personal injury claims and therefore retains residual knowledge and interest in this area in terms ...

  18. Latest on assignability of tortious professional negligence claims

    A man tried to sue for professional negligence in his capacity as an assignee of the alleged victim of that negligence. The case was determined on a limitations point, but in Kovarfi v BMT & Associates Pty Ltd [2012] NSWSC 1101 Justice McCallum of the Supreme Court of NSW gathered together the authorities in relation to the uncertain question of the assignability in Australia of causes of ...

  19. A basic guide to professional negligence claims

    Process. The first step is the pre-action protocol. A claim must be set out in a Letter of Claim, and the professional has three months in which to provide a reasoned reply. The parties are then expected to consider whether the claim can be resolved out of court. If that is not possible then a Claim Form can be issued at court.

  20. What Are The Four Elements Of Professional Negligence?

    The basis of a professional negligence claim is that a duty of care has been breached by the party in a position of responsibility. Duty of care can be breached in many different ways, and that depends on the work you employed a professional to carry out. Broadly, a breach of duty of care may occur when the professional has failed in their ...

  21. It's a fix! The Fixed Recoverable Costs regime and the impact on

    The higher band the claim is assigned to, the higher the level of recoverable costs. Fast Track Cases. For the Fast Track, Professional Negligence Claims fall within complexity "Band 4", i.e. the highest Band. Practice Direction 45 of the CPR (Table 12) sets out the relevant fixed costs for fast track claims and can be found here.

  22. Claims handlers' guide to settlement agreements

    For example, in a professional negligence claim arising from a corporate transaction, check that you have got the right corporate entity and also name any other entity with a potential right to claim. ... This could be, for example, an assignment of a cause of action. The settlement agreement should also record the parties' rights and ...

  23. (PDF) negligence Assignment

    12 Negligence Assignment Legal framework I 10 Conclusion The three essential of the law of negligence is satisfied in this case and there are no defence available for the food manufacturer. Therefore, it is advisable for Zebediah to go to court and file case against food manufacturer and claim for all the damages arising out of manufacturer ...

  24. Manage your Microsoft 365 subscription or Office product

    If you selected My Microsoft account, the Microsoft account dashboard will open.This is where you manage your Microsoft account and any Microsoft products associated with this account. On the Microsoft account dashboard, select Services & subscriptions to view all Microsoft products associated with this account. For non-subscription versions of Office (such as Office 2013 and later):