In July 2001 the pre-action protocol for professional negligence claims came into force, it should be used in all professional negligence cases other than those against construction professionals such as architects and quantity surveyors and doctors, nurses and surgeons where other specific protocols are used. The protocol applies for claims against solicitors, accountants, financial advisers, surveyors and banks.
The pre-action protocol encourages an early exchange of information, narrowing of issues and consideration of alternative methods of dispute resolution, with a view to wherever possible promote settlement of disputes without the need to issue court proceedings. The aim of the protocol and indeed the overriding objective of the court rules is that the initiation of court proceedings should be seen as a last resort in resolving disputes.
The protocol sets out standards which need to be followed before court proceedings are started. Cases where claimants have failed to comply with the Professional Negligence Pre-Action Protocol can be costly.
The first step in any professional negligence claim is the pre-action protocol. The protocol defines the steps to be taken with strict guidelines.
Once a claimant becomes aware of an issue and they are considering making a claim, they should send a letter advising of the details and the intention to make a claim. If known, the financial value of the claim should be included. It’s also advisable to encourage the defendant to make their insurers aware.
Letter of acknowledgement
The defendant has 21 days to acknowledge the preliminary notice. However, at this stage they are not required to take any further action. Most defendants will contact their professional indemnity insurers to ensure all relevant details are ready if the case moves forward.
Letter of claim
The next stage is a letter of claim which must be issued after the investigations and evidence has been gathered. The letter sets out each aspect of the claim, the background, the legal argument, the documents to support the claim and the evidence gathered in a chronological order, this can include reports from expert witnesses.
The letter of claim needs to show either how the financial loss will be calculated or the financial value suffered as a result of the negligence. At this stage the defendant should pass the details and the letter of claim to their professional indemnity insurers.
Letter of acknowledgement
As with the preliminary notice, the defendant has 21 days to acknowledge the letter of claim.
Letter of response
The defendant has three months to provide a letter of response. It should provide a detailed response to each section of the claim. The letter of response should clearly state whether liability is admitted either in full or partially or whether it is denied completely. If the defendant denies the claims against them they should justify the reasons why in detail relating to each individual aspect of the claim. The defendant should also detail any evidence they intend on using to dispute the claim and provide their own explanation of events.
Letter of settlement
If the defendant wishes to offer a settlement at this time to avoid further proceedings it should be included at the same time as letter of response.
If there is no letter of settlement and the defendant completely denies the claims against them in their letter of response then court proceedings can be issued. However, in other instances where there is a partial acknowledgement of a claim it is advised that negotiations continue without using court proceedings to reach an agreement. The aim of this would be to have a settlement agreed and a resolution to the claim within six months of the Letter of Acknowledgement.
The courts powers of sanction for failing to follow the pre-action protocol and its powers to put court proceedings on hold until completion of the pre-action protocol when they have been a commenced without it having been completed highlights the need to consult advice if you consider that you have a professional negligence claim so that the correct procedures are followed. If you need any advice or assistance with the pre-action protocol or any aspect of professional negligence claims please contact us. We can, if the claim meets certain criteria offer CFA funding arrangements for this type of claim.