Accountants, surveyors, financial advisers and lawyers can all be sued for careless advice. What a claimant must prove. In this article we look at the background, the key issues and what readers should do next.
The background
To understand why this matters now, it helps to look at how the position developed. For years the rules in this area were settled, and most practitioners could advise clients with confidence. That changed as courts, regulators and clients began asking harder questions, and as new technology and business models exposed gaps that the old approach never anticipated.
The result is a period of uncertainty. Different courts have reached different conclusions on similar facts, guidance has been issued piecemeal, and the practical burden has fallen on the people and businesses who have to make decisions before the law is fully settled. For readers, the most important point is that the outcome in any individual case will depend heavily on its facts.
How the courts are approaching it
Judges are applying established principles to new commercial realities, and the results are not always predictable. Recent decisions show a willingness to look past the form of an arrangement to its substance.
For parties in or near a dispute, the practical message is that preparation and early strategy matter more than ever.
Preparation is the cheapest insurance any party can buy.
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Strategy for parties and counsel
Experienced litigators recommend focusing on a handful of decisions that shape everything that follows.
- Preserve documents and data as soon as a dispute is likely
- Assess funding, costs and insurance early
- Consider settlement options alongside the litigation plan
- Choose the forum and procedure deliberately
Common questions
Does this apply everywhere? No. The rules differ between jurisdictions, and local procedure can change the practical outcome even where the principles are similar.
When should someone get advice? As early as possible. Deadlines in legal matters can be short, and early advice usually costs less than fixing problems later.
What happens next
Expect further guidance, test cases and commentary over the coming months. Criminal Minds Cast will keep following the story and update this article as the position develops.
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