PROFESSIONAL NEGLIGENCE
LEGAL UPDATE
Rachel Robertson
Introduction
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Legal test
Case law update
Solicitors, surveyors and accountants
Various issues arising
Limitation issues and recent changes
Recent increase in claims
Legal Test
• Test of negligence
• Hunter –v- Hanley 1955 SC 200
– “… it must be proved that there is a normal
practice; secondly it must be proved that the
Defender has not adopted that practice; and
thirdly (and this is of crucial importance) it must
be established that the course which the doctor
adopted is one which no professional man of
ordinary skill would have taken had he been
acting with ordinary care”.
• No professional man of ordinary skill would have
followed the course of action
Solicitors
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Contract and delict
Duties to 1) client and 2) Third Parties
Commercial advice
Midland Bank v Hett, Stutts and Kemp [1979]
Ch. 384
• Frank Houlgate Investment Company –vBiggart Baillie [2009] CSOH 2009
• Levicom etc v Linklaters [2010] EWCA Civ
494
Surveyors and Construction industry
• Contracts
• Professional duties
• Compliance with legislation and Codes
of Practice etc
Accountants
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Number of claims rising
Reasonable skill and care
Fiduciary duties
Regulatory Rules and FSA
Limitation – Recent Changes
• 6 year rule
• Identifying exact date of loss
• Pegasus v Ernst & Young [2010] EWCA
Civ 181
• AXA Insurance Limited v Akther etc
[2009] EWHC 635 (Comm)
Recent Increase in Claims
• Credit crunch
• Pricing risks
• More intense regulatory scrutiny
Future Changes
• Rise in claims continuing?
• How to protect against