Bringing a professional negligence claim based on the duty in contract, tort and equity
Bringing a professional negligence claim based on the duty in contract, tort and equity

The following Dispute Resolution guidance note provides comprehensive and up to date legal information covering:

  • Bringing a professional negligence claim based on the duty in contract, tort and equity
  • Contractual relationship with the professional
  • Limiting or excluding liability?
  • Professionals and tortious liability
  • Professional negligence claims in equity—fiduciary duties
  • Professional negligence claims—collateral attack on earlier failed claim

Having established the existence of a ‘professional’ who may owe duties to their client, it is then necessary to consider the bases on which such duties may be founded. It may be that a claim against professional advisers may be based in contract, tort, equity or all three.

Contractual relationship with the professional

Can a professional negligence claim be brought based on the contractual relationship with the professional?

In most cases, there will be a contract between the professional and the client, eg between a solicitor and their client. There may be express or implied terms as to the performance of obligations under the contract and there may be attempts to limit or exclude liability for inadequate performance.

Implied duty to exercise reasonable care and skill

By virtue of section 13 of the Supply of Goods and Services Act 1982 (SGSA 1982) most contracts for the provision of services made in the course of a business contain an implied term that the person providing that service will exercise reasonable care and skill.

Strict liability in contract cases

The implied term to exercise reasonable skill and care is only one term of any contract.

Most contractual duties are strict. It is therefore unusual for contractual terms to be qualified by a duty to do something only reasonably or only to a reasonable extent.

Therefore, generally, it