The Professional Negligence Pre-Action Protocol

The Professional Negligence Pre-Action Protocol came into force on 16 July 2001.  It should be used in all Professional Negligence cases, for which a more specific protocol does not apply.  By way of example, this Protocol would be applicable for claims against solicitors, surveyors and tax advisers but claims against architects or engineers would fall under the Construction and Engineering Disputes Pre-Action Protocol. 

It is primarily designed to allow potential claimants to try to settle their case without the need for court proceedings.  The Courts’ Practice Direction on Pre-Action Conduct states that “starting proceedings should usually be a step of last resort”.

The Protocol aims to ensure that all of the issues between the parties are identified within correspondence and that relevant evidence is gathered prior to court proceedings being issued; meaning that if cases cannot be settled they run more smoothly within the court system or alternative dispute resolution procedures such as arbitration or mediation. 
 
The Protocol lays down various steps that the parties should take, together with a timescale for doing so:

Preliminary Notice

Once a claimant becomes aware that he may wish to make a claim, he is encouraged to send a short letter to the defendant stating that a claim will be made; including brief details of the claim, together with a financial value if this is known.  The claimant should remind the defendant to contact its professional indemnity insurers, if it has any. 

Letter of Acknowledgement

The defendant should acknowledge receipt of this letter within 21 days but he is not required to take any further action at that stage.  However, a prudent defendant will take steps to notify his insurers and also gather all relevant evidence in order to make sure that it is stored in a safe place for future use in the case. 

Letter of Claim

Once the claimant’s investigations are complete and it is possible to set out comprehensive details of his claim, the claimant or his solicitors should prepare a Letter of Claim. 

The Letter of Claim should set out a clear chronology of the circumstances surrounding the case as well as the legal argument that will be relied upon in support of the claim.  It should also identify the documents and other relevant evidence that will be used to prove the claim (including expert evidence if this has been obtained).  

The Letter of Claim should quantify the financial loss that has been suffered, or state how it will be calculated, if it is not yet possible to do so.

The claimant should ask the defendant to pass a copy of the letter to its professional indemnity insurers. 

Letter of Acknowledgement

The defendant or its representatives should acknowledge receipt of the Letter of Claim within 21 days of receipt. 

Letter of Response

The defendant should consider and investigate the claimant’s allegations and provide a detailed response to each aspect of the claim.

The Letter of Response should be provided within 3 months of the date that the Letter of Acknowledgement was (or should have been) provided.  If the defendant will not be able to respond within this timescale, it should contact the claimant to explain the cause of the difficulty and confirm when it expects to conclude its investigations.  The claimant should agree to any reasonable requests for an extension.

The Letter of Response should confirm clearly whether the claim is admitted in whole or in part or whether it is denied.  If the claim is denied then the defendant should explain why by reference to the specific allegations that have been made against it.  If the defendant disputes the claimant’s version of events, then it should provide its own version of events together with any additional documents that it intends to rely upon.

Letter of Settlement

If the defendant wishes to make an offer of settlement, then it should also send a Letter of Settlement together with the Letter of Response. 

Further Correspondence

If the Letter of Response constitutes a complete denial of the claim and there is no Letter of Settlement then the claimant can issue court proceedings. 

In any other circumstances, or if it appears that progress can be made within correspondence; either in order to narrow the issues in dispute or to achieve settlement then the parties should commence negotiations with the aim of concluding them within 6 months of the date that the Letter of Acknowledgement was (or should have been) provided. 

If you are interested in making a professional negligence claim and would like to find out more about what Irwin Mitchell can do for you, please click here to download our New Claim Questionnaire and return to Cathryn Selby at the address on the form.

If you would like to read the Professional Negligence Pre-Action Protocol in full, please click here to access the Ministry of Justice website.