You can hold a professional liable if a professional error has demonstrably caused damage. A disappointing result is not enough in itself. What matters is the agreed engagement, the care you were entitled to expect and your situation without the error. This guide helps you find the right professional group, evidence and next step.
Responsible lawyer: Onur Arslan. Arslan Advocaten assists with the assessment of professional errors and the recovery of damage. Have a running time limit for objection, appeal or limitation checked immediately.
What is professional liability?
Professional liability is the liability of a professional for damage caused by an error in the performance of their work. Think of a time limit missed by a lawyer, an incorrect tax return by a bookkeeper or insufficient investigation by an adviser. In the case of treatment by a doctor or paramedical practitioner, we usually speak of medical liability.
The question is what a reasonably competent and reasonably acting fellow professional should have done in the same circumstances. The engagement, the information available, professional standards and warnings all count. Knowing in hindsight that a different choice would have been better does not yet prove a professional error. Even a carefully performed engagement can turn out unfavourably.
Looking for professional liability insurance? This page is about recovering damage after a professional error. Whether the professional is insured and whether their insurance provides cover are separate questions. A rejection by their insurer does not automatically mean that your claim lapses.
Whom do you want to hold liable?
Legal assistance
- Holding a lawyer liable: missed time limits, incomplete advice and loss of a chance in litigation.
- Error by the legal expenses insurer or the provider handling your case: who handled your file and which route fits?
- Holding a personal injury claims handler liable: forgotten items of loss, insufficient investigation and settling too early.
Financial and tax services
- Holding a bookkeeper liable: tax returns, accounts, penalties and remedial costs.
- Holding an accountant liable: annual accounts, audit, compilation engagement and damage suffered by third parties.
- Holding a tax adviser liable: incorrect tax advice or a missed tax opportunity.
- Holding an insurance adviser or insurance intermediary liable: wrong cover, changes not passed on and advisory errors.
For home financing: mortgage adviser liable for wrong advice.
Healthcare
- Medical liability: overview of errors by doctors, hospitals and other healthcare providers.
- Error by the GP.
- Error by the dentist or oral and maxillofacial surgeon.
- Holding a physiotherapist or other paramedical practitioner liable.
Real estate and notarial services
- Holding an estate agent liable: incorrect property information, floor area and insufficient warnings.
- Holding a civil-law notary liable: duty of care, investigation, deeds and financial consequences.
When does a claim for damages have a chance of success?
1. Which obligation was breached?
Record specifically what the professional should have done and what actually happened. The engagement letter is an important starting point, but emails, verbal agreements, later changes and the professional duty of care also count. An adviser may sometimes be obliged to warn of a risk outside the literal engagement.
2. Which damage arose from that error?
Compare your actual financial position with the probable position had the professional acted with due care. Tax that you would also have owed without the error, for example, is generally not damage caused by the adviser. Avoidable interest, a lost benefit or reasonable remedial costs may be. Do not simply lose sight of costs saved and relevant benefits.
3. Can you substantiate the link?
Proving an error and a loss is not always enough: there must be a link between them. With a missed time limit for appeal, it must also be examined what the prospects in the appeal were. With an advisory error, it is relevant which alternative was available and what you would have done with correct information. With medical damage, an independent expert often helps to assess the error and the additional damage to health.
Which damage can you recover?
Depending on the case, remedial costs, additional advisory costs, financial loss, lost income and reasonable costs of establishing damage and liability may qualify for compensation. Not every fee paid automatically has to be refunded. Nor is compensation for pain and suffering a standard compensation for frustration about the services provided; separate statutory conditions apply to it.
Sometimes a real chance of a more favourable outcome has been lost. An assessment of the good and bad chances may then be necessary. A lost chance is not equated with the full amount of the original claim without investigation.
Step-by-step plan: from suspicion to assessment
- Limit further damage. Have it checked whether remedying the error, an objection, an appeal, a supplementary tax return or another emergency measure is still possible. Do not wait for the response to your complaint to do so.
- Request the complete file. Also keep your own correspondence and original documents.
- Draw up a timeline. Note the engagement, advice, deadlines, discovery of the error and the consequences.
- Report the error specifically and in writing. Describe what happened and ask for a substantive response. Keep proof of sending and receipt.
- Have liability and time limits assessed. The duty to complain in time and limitation are different subjects. A complaint is not automatically a valid interruption of the limitation period.
- Substantiate the damage and choose a route. Negotiation, a complaints body and court proceedings each have a different purpose and different costs.
Checklist: which documents are needed?
- Engagement letter, general terms and conditions and invoices.
- Advice, reports, procedural documents, tax returns, deeds or treatment records to which the matter relates.
- Emails and messages, including warnings and your instructions.
- A timeline with important dates and time limits still running.
- An overview of the damage with evidence, for example tax assessments, repair invoices, income details or an expert report.
- Earlier complaints, responses and correspondence with insurers.
Send a brief description when you first contact us. Then agree how extensive or sensitive files will be supplied securely.
Complaint, disciplinary law or claim for damages?
An internal complaint may result in an explanation or a remedy. Disciplinary law focuses on the practice of the profession. For financial compensation, a separate civil assessment is often needed; the precise powers differ per professional group and body. A well-founded complaint does not automatically prove the full damage. Conversely, you do not always have to go through disciplinary proceedings first in order to investigate a civil claim.
With financial service providers, Kifid may be a route, subject to conditions. With healthcare providers, the complaints officer and a disputes committee may be relevant. Check in advance the body’s jurisdiction, time limits, any financial limits and whether a ruling is binding.
How long can you wait?
For claims for damages, a period of five years after you actually became aware of the damage and the liable person often applies. Other time limits or long-stop periods may also apply. Special rules exist for personal injury and death. The duty to complain in time may require you to act sooner: report a shortcoming you have discovered within a reasonable time. What counts as timely depends on the circumstances.
Have a letter interrupting the limitation period, aimed at your own claim, drawn up or checked. A general request for information or starting a complaints procedure does not necessarily protect all rights.
Costs and assessment by Onur Arslan
It must be clear in advance which investigation is needed, which documents are missing and what the next steps will cost. Even with a good claim, there may be own costs, expert costs and litigation risks. Whether costs can be recovered from the other party depends on liability, reasonableness and the chosen procedure. An award of legal costs usually does not cover all actual lawyer’s fees.
Contact Arslan Advocaten and mention that your question concerns a professional error. Onur Arslan is the responsible lawyer for this subject. Mention any urgent deadline straight away.
Frequently asked questions
Is a professional error the same as a disappointing result?
No. The conduct must have fallen below the required professional standard. The engagement and the information available at the time are important in this respect.
Does the professional have to acknowledge the error themselves?
No. An acknowledgement can help, but a claim can also be substantiated with documents and expert evidence. Ask for a reasoned response.
Should I address the professional liability insurer directly?
First establish who is responsible for the engagement. Insurance cover and the possibility of addressing the insurer directly require a separate assessment.
Can I have a case assessed if I have already settled?
Yes, but the settlement agreement, the full and final discharge, the advice given and the information available at that time are essential. A later setback does not automatically make a settlement open to challenge.
Legal sources
Relevant provisions include: Civil Code, Book 7 (duty of care under a contract for services, article 7:401, and medical treatment, article 7:453), Book 6 (compensation and the duty to complain in time) and Book 3 (limitation and interruption). This general information is no substitute for an assessment of your file.