PROFESSIONAL NEGLIGENCE LEGAL UPDATE

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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

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