Serve them a Writ and be damned!

This may have been the cry in the past but pursuing a Professional Negligence claim today is much more of a considered approach. As with many types of claim, there are Pre Action Protocols to follow which encourage parties to be more open with their approach and are designed to get an early disclosure of information and documentation such that the parties can quickly evaluate the relative strengths and weaknesses of their cases. Indeed, failure to follow such Protocols and just issuing court proceedings can lead to cost orders being made against the person bring the claim even if they were ultimately successful. So what are you required to do?

There are various stages in the Professional Negligence Protocol:

• A Preliminary Notice is often sent when you assess that there are reasonable chances that a claim will be made. This usually includes a request that the party receiving the Notice informs their Insurers of the claim.
• When you consider that you have reasonable grounds, a formal Letter of Claim is sent setting out the claim, the grounds and the value of the claim.
• The party receiving a Letter of Claim should acknowledge it within 21 days (and immediately report it to their insurers if they have not already done so)
• A period of investigation is then allowed which usually last up to 3 months.
• A formal Letter of Response and as appropriate, a Letter of Settlement, is then sent.
• The Parties are encouraged to make an early exchange of information and documentation. This would often mean including relevant documents with the Letter of Claim and the Letter of Response.
• The Parties then should give due consideration to Alternative Dispute Resolution (ADR) such as mediation, arbitration or an early neutral evaluation.
• Then and only then, if all else has failed, should court proceedings be issued.

As can be seen, there is much to consider when bring a claim for Professional Negligence and it is not a simple matter of running off to the Court at the first opportunity. Proper consideration of all the evidence should be made by all sides before any battle commences in the Courts. The time and cost alone would suggest that following the Pre Action Protocol is the first route to go.

If you need help in evaluating a potential claim for Professional Negligence and to follow the Pre Action Protocol, please contact the Head of Dispute Resolution at Chattertons, David Rogerson, Direct dial : 01636 675563