We are all entitled to expect any qualified specialist we engage to provide a professional service, worthy of the price being charged and with the expertise with which they hold themselves out. On some occasions however an expert may fall below the skill which should have been provided. If that has caused a person damage or financial loss, they may be entitled to a remedy and the professional is answerable for this. When things go wrong that shouldn’t or clients are inappropriately or carelessly advised, then the consequences can be financially disastrous.
‘Duty to Exercise Reasonable Care’
Professionals such as accountants, stockbrokers, financial advisers, lawyers and engineers, just to name a few, owed duties to their clients. Those duties are to exercise reasonable care founded in contract and tort (negligence). They are required to do what a reasonably competent practitioner would do having regards to the standards normally adopted in the particular profession. If the conduct falls short of the standard which the public has been led to expect and leads to loss, then this wrong can be actionable. These claims are generally described as professional negligence but can be based in contract or in negligence and potentially also breaches of trust.
Each year our firm handles disputes and advise our clients in relation to such matters and which have led to many claims in the District and Supreme Courts.
Quite often, the disputes themselves can arise not out of complicated transactions involving difficult concepts but rather, most of the time, the professional has simply taken their ‘eye off the ball’ and it is more than usual the simple mistakes that can lead to such economic loss. That’s not always the case, however and there are many situations that are indeed complex.
Some examples have included:
- Lawyers who have failed to commence proceedings for clients before the relevant limitation period expired, so that the clients have lost their opportunity to pursue a valuable claim;
- Financial planners, financial advisers and accountants providing negligent financial advice including as to the type of investments people should take and getting people involved in agricultural ‘investments’ and margin lending schemes when totally unsuitable and not providing more appropriate alternatives.
- Insurance brokers who have not obtained all the types of insurance cover required by a business and when needing to make a claim on the insurance company, the business finds they don’t have the cover they believed they should have;
- Accountants advising clients to adopt tax minimisation schemes but the Australian Taxation Office subsequently finding the schemes to be a sham;
- A sharebroker who had specific instructions to sell shares when they reached a specific price. When that price was achieved, the broker failed to sell the shares and the price continued to fall.
- Instances of pest inspectors failing to advise prospective purchasers of houses of termite damage and current infestation in the house they proceeded to buy.
- Real estate agents who make statements in the course of dealings for the seller of property.
- A house being built on unstable foundations where solutions could have been employed by the engineer and builder to avoid the subsidence problems but were not.
‘London & Madrid District and Supreme Courts’
The District Courts in London & Madrid have jurisdiction to hear such claims when the amount in dispute is between £/€150,000 and $750,000 and the Supreme Court hears claims when the amount is above £/€750,000. Claims for damages for breach of contract and negligence need to be commenced within 6 years from the date the cause of action arises. If they are not, the action will not be maintainable. As such, you should not delay considering your rights.
If you believe you have sustained some significant loss and would like to discuss your options or obtain some formal advice, contact Chreighton and Reis Associates for a discussion.
The information given here is not intended to be legal advice. If you believe you have any rights against a professional, you should consider obtaining legal advice and not delaying this as you may lose your rights.