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Professional Negligence Pre-Action Protocol

In order to make a professional negligence claim, you will need to abide by certain procedures which are in place for this purpose.

In this section the Pre-Action Protocol for Professional Negligence is explained, with examples and advice regarding consequential action and legal processes.

The Pre-Action Protocol is set out to establish a framework facilitating an early information exchange enabling a professional negligence claim to be fully investigated, and where possible, resolving prior litigation proceedings.

When does the Pre-Action Protocol apply?

The aforementioned process is appropriate in the instance of a claim held against a professional whose negligence resulted in a breach of contract or fiduciary duty (breach of trust). Different, industry-specific processes are required, however, to deal with professional negligence by construction or healthcare providers.

The process applies to all proceedings issued post 16 July 2001; however, it does not apply to any claims started prior that date.

The Pre-Action Protocol step-by-step

In the first instance that a Claimant decides that they are likely to bring a claim against a professional, the party is encouraged to officially notify in writing the negligent professional. Within the letter should be basic information including the identity of the relevant parties concerned, a brief outline of the grievance, and an indication of the financial value of the potential claim. The letter should instruct the professional to consult their indemnity insurers immediately. Legally, the professional is obligated to indicate acknowledgement within 21 days of receipt.

In the event that the Claimant decides that a claim is appropriate following correspondence with the professional regarding the act of negligence, a detailed letter should be written to the professional. Ordinarily an open letter not ‘without prejudice’ should detail the claim specifying a chronology of events, and the allegations held against the professional with an estimate of the financial loss impended.

Also enclosed should be any additional documents supporting the claim, along with the Letter of Claim, additionally confirming the appointment of an expert within the claim, while advising the professional to forward the letter toward their insurers. The Letter of Claim does not qualify to the same status as the Claimant's Particulars of Claim in the instance of proceedings being subsequently issued, however should be regarded similarly. In differing materially, the court may be entitled to impose sanctions at a later date.

The professional is legally obliged to acknowledge the Letter of Claim within 21 days of receipt.

Following on from written notice of legal action the professional then is entitled to three months leading from the date of the Letter of Claim to investigate the negligence claim. The Claimant is required to agree to any reasonable extension in the event that the professional is experiencing difficulty regarding investigatory matters within the set-out timeframe. Any documents requested throughout the initial proceedings should be promptly supplied.

Upon completion of the investigatory proceeding, the professional is obligated to send either one of both of the aforementioned documents. In the event of sending both documents, they may be contained within the same document at postage.

The letter of response should also be an open letter and must be a reasoned answer to the Claimant's allegations. An admission or denial should be clearly stated within the letter, and in admittance the details of full or partial responsibility clarified, specifying parts that are admitted or denied.

Any of the documents which may be relied on should be enclosed within the letter, and in the event that the professional disputes the Claimant's prediction of financial loss, then they are obligated to provide their own estimate of loss.

The Letter of Response is not held at the same status as the Defence, however should be considered similarly. In the event that they differ materially, then the court is entitled to impose sanctions at a date to follow.

The letter of settlement is also required to be written without prejudice, and should be sent in the event that the professional intends to form proposals for a settlement. The letter should detail the points that the professional believes are primary key within the dispute which may be initially settled, or only further considered at the receipt of additional documentation prior to the formation of a proposal.

A Letter of Response is that which denies the claim entirety with no Letter of Settlement, to which is open to the Claimant to initiate proceedings.

In the event of any additional circumstances, negotiations held between the negligent professional and the Claimant should immediately commence with intentions of concluding the negotiations within six months of the Letter of Acknowledgment.

When a claim is not able to be resolved prior to the close of the six-month period, parties are then required to identify issues which are considered outstanding while being obligated to agree an extension within 14 days of the end of the initial period. In the event that an extension is not agreed, the Claimant is then entitled to open proceedings.

Pre-action Protocol for Construction and Engineering Disputes

The Pre-Action Protocol for Construction and Engineering Disputes sets out guidelines and standards to which the parties within a construction or engineering dispute are obligated to consider prior to issuing Court proceedings. The enforced Protocol is set out to encourage the involved parties to exchange information at an earlier stage, with the aim of inducing an alternative dispute resolution measure, known as ADR.

When does legislation regarding disputes apply?

The set out Protocol applies within all construction and engineering disputes. This includes professional negligence claims against engineers, architects and quantity surveyors. However, ordinarily a Claimant is not required to meet the terms of the Protocol in the following circumstances:

  • court proceedings are required in order to enforce a decision of an adjudicator to whom a dispute has been referred pursuant to section 108 of the Housing Grants, Construction and Regeneration Act 1996;
  • court proceedings include a claim for an interim injunction;
  • the Claimant is seeking a summary judgment pursuant to Part 24 of the Civil Procedure Rules; or
  • the dispute is in relation to identical or substantially similar issues as to those that have been the subject of a recent adjudication under the Housing Grants, Construction and Regeneration Act 1996, or another formal alternative dispute resolution ADR procedure.

A Claimant is ordinarily permitted to instigate Court proceedings without the Protocol compliance if, in the event of complying with it, the claim in question may be time-barred. In circumstances such as the aforementioned the Claimant is then required to apply to the Court for directions in issuing court proceedings. Additionally the Court may in such cases order a stay of the proceedings pending compliance with the Protocol.

Disputes requirements

The Letter Of Claim

The Claimant is obligated to notify the Defendant of the claim through a written statement to each proposed Defendant (where appropriate to their registered office) in addition to a letter of notification of claim prior to officially commencing Court proceedings.

The Protocol specifies the details and information which should be outlined within the letter of claim.

The Defendant’s acknowledgment of the Letter Of Claim

The Defendant is obligated to acknowledge receipt of written indication of claim within 14 calendar days of receiving the letter. In the event that the Defendant is insured he or she must include the name and address of their insurer, along with any documentation relevant to the Claimant at this stage.

In the event, however, that the Defendant fails to acknowledge receipt of the claim letter within the regulated timescale of 14 days, the Claimant is entitled to commence Court proceedings without any further compliance with the Protocol.

Objections to the Court’s jurisdiction or the Named Defendant

The Defendant is entitled to 28 days post receipt of the letter of claim with which to raise an objection on the following grounds:

  • The matter is to be referred to arbitration.
  • The Court lacks jurisdiction.
  • The Defendant named in the letter of claim is the wrong Defendant.

Any objections from the Defendant should be put to the claimant in writing, specifying details of the claim objections and any relevant accompanying information. The objection should also detail the grounds relied on and, in appropriate instances, identifying the correct Defendant, if to the knowledge of the accused.

In the event that the Defendant fails to initiate an objection at the initial stage, they are then allowed to raise objections at a later stage in the proceeding. However, it is not uncommon in this instance for the Court to take the initial failure into account upon deciding the question of costs.