A key but often misunderstood element in any professional negligence claim is the issue of causation; and demonstrating causation can be the deciding factor in whether a claim succeeds or fails.
Many lay people believe that when it comes to professional negligence the most important (and perhaps only) thing to prove to the Court is that the defendant professional has acted in breach of its duty to the claimant. However, that is not the case. In order for a claim against a professional to succeed, a claimant must prove to the Court that on the balance of probabilities (1) the professional owed the claimant a duty of care; (2) that duty has been breached; (3) the breach has caused the claimant to suffer loss; and (4) which is not too remote. The third limb is what practitioners call causation and which is often where cases fail. The basic question is “has the breach caused the loss?”
Not all that follows a breach of duty is recoverable in law. This is because in law it is necessary to establish both:
- Factual causation, meaning but for the breach, the result would not have happened, i.e. had the tax advisor advised properly, no Inheritance Tax (IHT) would have been payable; and
- Legal causation, meaning in order to restrict recoverable losses to those that are sufficiently close to the breach of duty, i.e. while the IHT that was payable because of the tax advisor’s breach of duty will be recoverable, the increase in value of any asset that you could/would have bought with the money that you used to buy the IHT will not be recoverable.
The value of a claim (i.e. how much you can recover following a professional’s breach of duty) is one of the key things that a Claimant needs to know at an early stage in order to determine whether to pursue the claim and, if so, by what means. That is why Healys provides this advice (together with how likely the claim is to succeed) as soon as reasonably practicable.