Claiming compensation for professional negligence, rather than abatement
Solicitor Emma Slade looks at the legal distinction between claiming compensation for professional negligence and seeking abatement.
So, you have contracted with a builder to construct your much-desired extension but by the time they have finished the work, the building is dreadful. Invariably this scenario ends in a dispute between you and the builder over his charges. But what about the architect? If the builder has built the extension according to the architect’s plans, should you still pay the architect’s bill, or can you get a reduction in those fees? Can the fees be – and I use the technical legal term – ‘abated’? After all, you will argue that the architect has not earned those fees.
You will undoubtedly be very surprised to hear me say that no, you may not be entitled to a reduction in those fees.
Generally, abatement is not a valid defence to a claim for payment for professional services under contract. Provided the services have been substantially performed, the fees cannot be reduced as there will still have been some merit in those services. There may have been delay and disruption in provision of those services but that does not entitle you to claim a rebate. This can cause a lot of surprise to some clients when explained.
But there are exceptions to the rule.
Firstly, you will note I have said that the fees cannot be abated if there has been some merit in those services. But what if the service has been utterly worthless? In those circumstances, there will have been a fundamental lack of consideration in the contract, so those parts of the fees relating to services that are utterly worthless can indeed be removed.
Secondly, abatement may not be the proper argument to be used – but claiming compensation for professional negligence might be!
In claims for professional negligence, if it can be shown that a similarly qualified and experienced professional would not have acted in that way (breach of duty of care) and that as a result of the professional’s actions (or lack thereof), you have suffered a loss, then a better claim would be to seek, not a reduction of their fees, but recompense for that loss.
What do I mean?
Let us go back to the architect who prepared the drawings for your much-desired extension, which ended up looking no better than a chewed-up wreck. Presumably, the first thing you would do is engage a new architect. So you will incur those additional fees. You may also incur other fees in trying to remedy the build, fees on top of that which you would have incurred had the work gone well. Provided that the architect did indeed breach his duty of care to you, you would be able to claim the additional architect’s fees and all the remedial costs. You would still be liable for the architect’s original fees but any spend over and above that which would have been incurred had the work been carried out correctly, could be claimed as part of a claim for compensation for professional negligence.
So ultimately, whilst you may not get an abatement on the fees for the services of a professional, you can claim for your losses. It all comes down to how you present your claim: professional negligence, not abatement.
Emma Slade is a solicitor and partner in our professional negligence department who specialises in bringing negligence claims against professionals including solicitors and architects. We offer a free case assessment service for claims with a value of more than £25,0o0. Submit brief details by email to [email protected] or call us on 0333 888 0403.
