So if a professional makes a mistake when they are working for you, that means you can just sit back and wait for them to fix it, right?
Not necessarily. If someone makes a mistake which causes you loss, then you have to take steps to avoid or reduce that loss (and shouldn’t do anything to increase it), otherwise you could find that your right to recover your money is affected.
So what do you have to do? The Court will expect you to take what it calls “reasonable steps” and the standard of what you may be expected to do is not high. A number of factors come into play and what you should or should not do depends on the facts of each situation. So, for example, if you are acting in the grips of a crisis situation then you may be shown more understanding for the decisions you make in the face of a mistake. You should not take risks with your own money (so for example, you would not have to spend money on a complicated or expensive claim against a third party) and what is reasonable for one person will not be reasonable for another, depending on how much money they have. It does not necessarily matter if your attempts to help your situation make it worse if you have tried to act reasonably. In those cases you might even be able to claim your costs of trying to make it better back from the other party.
So if it all goes wrong, what can you do to help yourself?
- You should think very carefully about refusing help from the professional who has made the mistake in the first place. This could limit your right to claim your losses and you should always seek advice from an independent professional as soon as you realise you have a potential claim for negligence;
- Take advice from a specialist before you do anything. So, for example, if you have been given poor advice from an Independent Financial Adviser who has mis-sold an investment to you, seek written advice from a different specialist Independent Financial Adviser about whether it is better to withdraw your money as soon as you find out the investment is unsuitable or wait, for example, until the market improves;
- Always keep a record of why you have taken any steps to try to lessen or avoid your losses. So, for example, if you have been told not to pursue an appeal if a claim goes wrong, then you should keep a written note of all documents which record that advice and any other documents which were relevant to that advice;
- Act quickly. If you let your complaint get “stale” then your memory can become hazy and the more likely documents will get lost. Make sure you seek independent help and advice as soon as you can;
- Make sure you ring fence all documents relating to your complaint and keep them safe whether they are in hard copy files or on your computer or other devices.
Remember, you cannot just sit on your hands and expect the professional’s insurer to make it right. Think about whether there is anything you can or should do to improve your position so that your claim is not affected.
This blog post was written by Michelle Davies. For further information, please contact:
Michelle Davies, legal director, Commercial Dispute Resolution
T: 0121 234 0092