Q&As

Where a duty of care is owed, can constructive knowledge on the part of the claimant defeat a claim based on breach of the duty? In an alleged professional negligence claim, what are the general principles for determining what would have happened had proper advice been given?

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Produced in partnership with Chris Bryden of 4 King’s Bench Walk
Published on LexisPSL on 20/05/2019

The following Dispute Resolution Q&A produced in partnership with Chris Bryden of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • Where a duty of care is owed, can constructive knowledge on the part of the claimant defeat a claim based on breach of the duty? In an alleged professional negligence claim, what are the general principles for determining what would have happened had proper advice been given?
  • Constructive knowledge
  • Professional negligence claims
  • Defences

Where a duty of care is owed, can constructive knowledge on the part of the claimant defeat a claim based on breach of the duty? In an alleged professional negligence claim, what are the general principles for determining what would have happened had proper advice been given?

Constructive knowledge

Constructive knowledge is deemed knowledge of a particular person regardless of whether that person had actual knowledge of the relevant matter. It applies in a number of situations, but commonly where an agent is acting for a principal—the knowledge of the agent, in respect of the matter that is within the scope of authority of that agent, is imputed to the principal.

By way of example, a solicitor may act as agent for a client and, depending on the terms of the retainer, the solicitor’s knowledge may be imputed to their client. This is particularly relevant to claims that would otherwise be statute-barred as a result of the operation of the Limitation Act 1980 (see Jacobs v Sesame Ltd).

Professional negligence claims

Where professional negligence is alleged, the court will consider:

First, (a) the scope of the alleged duty: what is that the solicitor was engaged to do and (b) whether or not the solicitor has exercised skill and care in the discharge of that duty. A lawyer owes a duty to give reasonably careful and competent advice to the standard

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