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PROFESSIONAL NEGLIGENCE LEGAL UPDATE. Rachel Robertson. Introduction. 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

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PROFESSIONAL NEGLIGENCELEGAL UPDATE

Rachel Robertson


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Introduction

  • Legal test

  • Case law update

  • Solicitors, surveyors and accountants

  • Various issues arising

  • Limitation issues and recent changes

  • Recent increase in claims


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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


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Solicitors

  • 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 –v- Biggart Baillie [2009] CSOH 2009

  • Levicom etc v Linklaters [2010] EWCA Civ 494


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Surveyors and Construction industry

  • Contracts

  • Professional duties

  • Compliance with legislation and Codes of Practice etc


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Accountants

  • Number of claims rising

  • Reasonable skill and care

  • Fiduciary duties

  • Regulatory Rules and FSA


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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)


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Recent Increase in Claims

  • Credit crunch

  • Pricing risks

  • More intense regulatory scrutiny


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Future Changes

  • Rise in claims continuing?

  • How to protect against