The general view is that professional negligence claims increase in difficult times.
Right now the financial squeeze on people and businesses is intense, thanks to first Brexit, then Covid, a cost of living crisis and uncertainty.
Whereas in good times people may be more forgiving about a certain level of professional mis-judgment or imperfect outcomes, in the current economy, clients across all wealth brackets tend to be more critical of things going wrong.
The question whether or not they applied the golden rule, as a measure of good practice, could be critical.But where is the line for professional advisers? And how can you make sure to stay on the right side of it and avoid a negligence claim?
The ‘golden rule’ comes from the case of Re Simpson in 1977 and has been an important benchmark ever since.
It sets out that where there is doubt as to the mental capacity of a person making a will, the practitioner should ensure that a medical practitioner should be completely satisfied that the person making the will has the capacity to make it.
Failure to do this could potentially lead to challenge of the will and a finding that it is invalid. This could in turn lead to a myriad of issues for the estate and its beneficiaries – and potentially a nightmare of a negligence claim for the practitioners who advised on the will.
But the better view is that the rule is a guide to best practice only. It is not iron clad.
Depending on the circumstances, it might be entirely appropriate not to call in medical advice. It is a judgment call.
To this extent the rule is a good illustration of how the law of negligence works more broadly, and how it distinguishes between the black, the white and the grey, between good and bad practice and advice.
If it is just a guide, how can it have such legal importance?The rule can be viewed as a statement of good practice. Yet entire court cases have revolved its application (or lack of it). So if it is just a guide, how can it have such legal importance? The answer, in short, is because it goes to what a reasonable practitioner would have done, which is a key test.
Three points need to be established to prove an adviser has been negligent.
Firstly, did they owe a duty of care to the person making the claim? Imagine here a scenario where a disgruntled would-be beneficiary has discovered the will governing their assumed inheritance has been deemed invalid. Is it reasonable for them to expect a professional advising on the will to take care to look after their interests? A line of cases says that it is.
Secondly, did the adviser breach that duty? What is the level of that duty? The standard is not perfection, but rather what a reasonable practitioner in the same field would have done in that situation.
In our wills scenario, the question whether or not they applied the golden rule, as a measure of good practice, could be critical: if an adviser did not call in a medical practitioner to judge an elderly or infirm client’s mental capacity to make the will, did they make a reasonable judgment that their soundness of mind was not in doubt?
Interestingly the will of the judge who made the decision in the Re Simpson case above was itself subject to scrutiny. In that case the court held that the judge who made the will without a medical practitioner being involved did have capacity to make a will and it was held to be valid.
It is only natural that people sometimes make good decisions, sometimes not – and on other occasions somewhere in between.Lastly, the law will examine what the loss is (if any) resulting directly from the adviser’s negligence. In these types of cases, the focus can be less who is at fault and more what is the amount of the loss and perhaps can the problem be put right.
I once worked on a case involving negligent financial advice around VAT where the solution was to call in a VAT expert to work through the complexities and they were able to ensure no tax was to be paid. So in that case the 'loss’ was no more than the fees of the VAT expert in assisting and legal costs.
Real life, both personal and business, is full of challenging situations. It is only natural that people sometimes make good decisions, sometimes not – and on other occasions somewhere in between.
As poet Alexander Pope once famously said: "To err is human." But when it comes to professionals advising clients, this latitude only goes so far.
Jeremy Lederman is a partner and professional negligence specialist at boutique law firm Harold Benjamin
