Professional negligence Pre-Action Protocol
The Professional Negligence Pre-Action Protocol applies to all professionals other than those involved in construction or healthcare provision. The key features of the system are set out below.
The aim of the Protocol is to encourage an early exchange of information so that the claim can be fully investigated and, if possible, resolved without the need for litigation. Aims include:-
- ensuring that the parties are on an equal footing
- saving expense
- dealing with the dispute in ways which are proportionate:
- to the amount of money involved
- to the importance of the case
- to the complexity of the issues
- to the financial position of each party
- ensuring that it is dealt with expeditiously and fairly.
As soon as a Claimant decides that there is a reasonable chance of bringing a claim against a professional he should send a letter notification, giving a brief outline of the facts and an estimate of the claim’s value if this is possible (it is often not).
The professional must acknowledge it within 21 days.
Once the Claimant has investigated the matter and, typically, considered the solicitor’s file, he should write a full Letter of Claim which sets out:-
- An identification of the likely parties to the claim
- A chronological summary of the key facts, enclosing key documents
- The allegation(s) of negligence
- How that negligence has caused the Claimant a loss
- An estimate of the financial loss suffered by the Claimant, including details of how it is calculated, enclosing supporting documents
- A statement as to whether and when an expert has been appointed and in what discipline
- A request that the letter of claim be forwarded to the Defendant’s insurers
Copies of any other letters of claim sent to any other party in relation to the dispute.
The Defendant has 21 days to acknowledge the letter and three months from the date of acknowledgement to investigate and send a Letter of Response which should include:-
- What the professional admits
- Comments on the allegations made and any alternative version of events
- What, if anything more is needed to deal with the claim
- Any alternative estimate of the Claimant’s financial loss
- What other documents are relied upon
The Claimant should only issue legal proceedings if the Letter of Response denies the whole claim. Otherwise the parties should negotiate and attempt to resolve the matter within 6 months of the Letter of Acknowledgement. If the matter is not settled and the period is not extended, then the Claimant may commence proceedings.