don't delay if you think you have a claim for professional
negligence
The case of Integral Memory PLC v Haines
Watts [2012 EWHC 342 (Ch) demonstrates why claimants need
to seek legal advice as soon as they think they may have a
claim for professional negligence to avoid a claim being time
barred. It also serves as an important reminder for professionals
to advise their clients of changes in the law or legislation if
they have promised to do so.
Firm of accountants, Haines Watts, was
retained by Integral Memory PLC to provide tax advice in relation
to a discretionary bonus scheme. The scheme's aim was to achieve
savings in national insurance contributions for the company. The
accountants advised that the scheme would work and achieve savings
for the company until there was a change in the law and that they
would advise the company when that happened. However, they did not.
There was a change in the law in 2003 which negated the benefit of
the scheme. The company only found out about this when they sought
advice in August 2009 and as a result, had to make an unexpected
payment to HMRC of in excess of £100,000.
They waited until May 2011 before issuing a
claim against the accountants for professional negligence. The
accountants argued that the claim was clearly out of time, (as
usually a claim for negligence must be made within six years of the
date of the breach). Here the breach was the failure of the
accountants to advise the company in 2003 when the law changed. The
company argued that the accountants had a continuing obligation to
advise of them of the change in law, so they could review their tax
affairs. However, the judge rejected this argument and said that
the duty to advise occurred in 2003 when the law changed. As this
did not happen, there was a clear breach of duty and as a result,
negligence. However, the claim could not succeed as it was well out
of time, so the company were not able to recover their losses.
There are several lessons to learn from this
case. First, companies and individuals should have regular reviews
with their accountants, financial and tax advisers to ensure that
all financial arrangements in place are still beneficial to them.
Second, companies or individuals should seek legal advice as soon
as they consider that they may have a claim for negligence. They
should not delay to avoid being time barred as claimants cannot
argue that a professional has a continuing duty to do something to
overcome a strict time limit. And finally, professionals,
particularly accountants, tax advisers and financial advisers
should remember to advise clients of changes in the law if they
have promised to do so.
