What Is the Pre-Action Protocol for Professional Negligence Claims?

Posted 16th June 2022

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What Is the Pre-Action Protocol for Professional Negligence?

The Professional Negligence Pre-Action Protocol was introduced in 2001 and sets out the steps a claimant and professional should take in the course of a professional negligence claim before going to court proceedings. It aims to identify the issues of the case, settle or reduce these issues without the need for court proceedings and avoid unnecessary expenses in resolving the dispute.

Where court proceedings are unavoidable, the Professional Negligence Pre-Action Protocol ensures that proceedings will be efficient.

The term ‘professional’ is deliberately left vague as it can be ascribed to any person acting in a professional capacity who is not believed to have acted reasonably, having breached a contract or their fiduciary duty.

Exceptions

The pre-action protocol for professional negligence claims cannot be used where there is an existing and more suitable pre-action protocol – it is not intended to replace other protocols. For example, you could not use the Professional Negligence Pre-Action Protocol for:

  • Architects, engineers and quantity surveyors, where claims would fall under the Construction and Engineering Disputes protocol.
  • Healthcare providers or cases of clinical negligence, where claims would fall under the Resolution of Clinical Disputes protocol.
  • Any case of defamation, where claims would fall under the Pre-Action Protocol for Defamation.

 

Professional Negligence Pre-Action Protocol

  1. Preliminary Notice

When a claimant decides to bring a claim (or thinks it likely they will bring a claim) against a professional, they are first encouraged to inform the defendant. A short letter will serve as the preliminary notice. It should include who the claimant is (as well as anyone else involved in the claim), what the claim is regarding and, where possible, the estimated potential financial value of the claim.

The defendant should acknowledge this within 21 days. While they have no other legal duties at this point, it is sensible for them to begin collecting any information and evidence relevant to the case for future reference.

  1. Letter of Claim

Once the claimant has collected enough information to undertake the case, the claimant(or their solicitor) should contact the defendant with a Letter of Claim. This should lay out:

  • The claimant’s identity (and those of any relevant parties).
  • What allegation is being brought against the defendant.
  • A chronological summary of events and facts, with key dates highlighted.
  • Any documents that the claimant might reasonably request.
  • An explanation of how the allegation led to the loss that constitutes the claim.
    • This should also include what might have happened had the defendant acted correctly.
  • An estimated figure of the loss the claimant suffered (including how that figure was reached, with any supporting documents supplied).
    • If this estimate cannot be provided, the letter should explain why and when this should be expected.
    • If the claimant is not seeking financial compensation, this should be clearly addressed.
  • Where an expert has been appointed, their identity and field should be laid out. Where no expert has been appointed, this should also be made clear.

Any important documents should be referenced and copies should be enclosed with the letter.

  1. Letter of Acknowledgement

The defendant should acknowledge the Letter of Claim within 21 days of receiving it. If they believe that the Letter of Claim is insufficient, the defendant can request a follow-up with any information which might be reasonably required.

Following the Letter of Acknowledgement, the defendant will have three months to investigate and respond to the claim laid out in the Letter of Claim by way of a Letter of Response, a Letter of Settlement, or both.

If the defendant may struggle to meet the three-month time period, this should be explained to the claimant as early in the process as possible and certainly before the period is over. For the claimant’s part in this stage of the Professional Negligence Pre-Action Protocol, the claimant should allow any reasonable extension of this time period.

Letter of Response

A Letter of Response should make clear what parts, if any, of the claim the defendant admits, and which parts are denied. If the defendant denies any part of the claim, the defendant should include comments on the allegation and the defendant’s own version of events.

If the defendant disagrees with the figure of financial loss provided, the defendant should also use the Letter of Response to set out the defendant’s estimate or state when the defendant will be able to provide an estimate of this figure.

Letter of Settlement

A Letter of Settlement can be sent if the defendant wishes to settle all or part of the claim. It should include a proposal for the settlement or outline any information needed to formulate that proposal.

 

  1. Negotiation and Court Proceedings

If the Letter of Response denies the claim in its entirety and no Letter of Settlement is sent, the Pre-Action Protocol for Professional Negligence is complete and the claimant will be able to begin court proceedings.

In any other situation, the professional and claimant should enter into a negotiation period. This aims to resolve the claim within six months of the Letter of Acknowledgement.

The negotiation period may include Alternative Dispute Resolution, including:

  • Mediation
  • Arbitration
  • Early neutral evaluation
  • Adjudication
  • Ombudsmen schemes

 

How Newtons Solicitors Can Help

Following the Professional Negligence Pre-Action Protocol closely is vital. Any court proceedings will be put on hold until the protocol is followed, so it’s key to ensure that it is done correctly. Instructing an experienced solicitor means that you will be assisted throughout the process by someone who is intrinsically familiar with it.

At Newtons Solicitors, our commercial litigation team has experience with the Pre-Action Protocol for Professional Negligence across a range of professions, including surveyors, accountants, insurance brokers and other solicitors.

We will discuss the parameters of your claim, advise you on how to proceed and instruct any experts that the case requires. We can also assist with Alternative Dispute Resolution, should it be necessary.

If you believe you might have a professional negligence claim or if you would like to commence the pre-action protocol for professional negligence claims, please contact us at Newtons Solicitors today for advice and guidance on next steps.