Just hold your horses... Pre Action steps in Professional Negligence Claims

Gone are the days when the first step in making a claim was to issue proceedings. “Just serve them with a Writ” was the mantra but now we are all encouraged to try and resolve matters before venturing through the Court’s doors. Indeed, there are cost sanctions if any Claimant fails to follow what is called the “Pre-action Protocol”.

Once a potential claim has been investigated and it appears to be worthwhile pursuing, the claimant should not simply issue court proceedings straightaway (unless the relevant limitation period is about to expire). A procedure known as the ‘Professional Negligence Pre-Action Protocol’ should be followed. This provides a framework for an early exchange of information with the aim of dealing with matters expeditiously and cost effectively, and is designed to encourage parties to settle a dispute without the need for court proceedings. The Professional Negligence Pre-Action Protocol can be found on the Civil Procedure Rules website: www.justice.gov.uk

The main steps are summarised below:

Preliminary Notice

As soon as the claimant decides there is a reasonable chance that a claim will be brought, he or she should notify the professional in writing with a brief outline of the grievance and an indication of the financial value of the claim. The professional should acknowledge this letter within 21 days.

Letter of Claim
Once the potential claim has been investigated, the claimant should send a detailed Letter of Claim to the professional. This should identify the parties involved, set out the facts upon which the claim is based, the allegations against the professional, explain how this caused the alleged loss and provide an estimate of how the loss is calculated. Supporting documentation should
be enclosed if possible.

Letter of Acknowledgement
The professional should acknowledge receipt of the Letter of Claim within 21 days of receiving it. The
professional will then have three months from this date to investigate the claim and respond.

Letter of Response and Letter of Settlement
Once the investigations have been completed, the professional should send to the claimant a Letter of Response, a Letter of Settlement or both. The Letter of Response (normally an open letter) should
set out the professional’s answer to the claimant’s allegations. It should make clear whether the claim, or parts of the claim, are admitted or denied. The professional should identify any further information which it requires of the claimant. A Letter of Settlement (normally a ‘without prejudice’
letter) should make a settlement proposal or identify the further information required before a proposal can be made. If the claim is denied in its entirety and there is no Letter of Settlement, a claimant may commence court proceedings. Often, however, further correspondence and negotiations will follow between the parties.

Alternative Dispute Resolution (ADR)
Both parties should consider whether some form of alternative dispute resolution would be more suitable than litigation. This may include:

• Discussion and negotiation
• Early neutral evaluation by an independent third party
• Mediation

Court proceedings
If the parties fail to solve the dispute by following the Professional Negligence Pre-Action Protocol, then the claimant will need to decide whether or not to issue court proceedings. Claimants should bear in mind that they are likely to be ordered to pay the defendant professional’s legal costs if the claim is unsuccessful. It may be possible to obtain ‘after the event’ insurance to protect against this risk and a claimant should discuss this with his or her legal advisers.

If you want to consider a claim against a Professional such as an accountant, solicitor or surveyor, discuss this us to get a full and expert evaluation. Contact David Rogerson on david.rogerson@chattertons.com or ring Direct dial: 01636 675563.