When we think about the possibility of professional negligence claims, one of the key areas to consider is the applicable standard required and expected of the professional involved who has committed the breach
When a professional has let you down or has delivered a service which has failed to meet the expected levels of that profession or even where there has been an underperformance which has resulted in loss, it is likely that you will have a claim in professional negligence.
You will want to find out whether you have grounds to pursue a claim and, having done that, then explore the options and avenues of complaint.
Issuing court proceedings should always be a last resort.
If court proceedings are eventually issued, the Court may make enquiry of the parties as to what steps had been taken to engage with each other to resolve matters earlier and whether any form of dispute resolution had been adopted.
This is why it is important to be aware of the steps that should be taken before embarking on costly court proceedings as not to do so could result in the Court not looking favourably upon you particularly in relation to the recovery of legal costs.
We are all now encouraged to try and resolve matters before venturing through the Court’s door by taking steps laid out in a process which is called pre-action protocol. Failure to do that risks costs penalties in the event that court proceedings are issued.
Professional Negligence Pre-Action Protocol
Pre-Action Protocol is the legal name for the sequence of steps which must be taken by someone who is intending to bring a claim in professional negligence to court.
There is a particular pre-action protocol which must be followed in relation to claims for professional negligence.
The idea of pre-action protocol is to ensure that there is exchange of information early on between the parties about the claim and also promote the possibility that a resolution can be found before proceedings are issued.
To not do that comes with it’s own risk being mainly that even if you are successful in bringing your claim, if you have not undertaken the legal processes as laid down, then this may affect the amount of any legal costs you might be able to recover.
Generally, many cases in professional negligence are resolved during this early period when the parties are exchanging information and documents about the case.
Resolving the dispute as quickly as possible without the inevitable stress and inconvenience which comes with litigation – particularly in professional negligence claims where a claimant has already suffered anxieties as a result of the negligence itself – has obvious significant benefit.
There are a number of these protocols, each designed to align with a particular type of claim so in professional negligence claims there is a specific pre-action protocol for professional negligence.
How to comply with the professional negligence pre-action protocol
This pre-action protocol is a process which involves implementing the following:-
Step 1
Preliminary Notice; As soon as a claim has been identified, the claimant should write to the professional providing notification of the grievance giving a general indication of it’s financial value. Usually you would also be asking the professional to notify their own professional indemnity insurers of the claim immediately.
This is called a preliminary notice and the professional should acknowledge receipt within 21 days of receiving it.
Step 2
Letter Before Action; Where there are grounds for a claim, the details of the claim should be set out in a Letter of Claim which is also referred to as a Letter Before Action (or “LBA) and sent to the professional.
The Letter of Claim will usually set out all of the grounds of the claim by reference to the evidence and include any key documents to be sent along with it.
In most cases it will be a very detailed and lengthy letter giving a full account of the circumstances under which the professional was engaged, what was expected and where there was failure.
As a Letter before Action it necessarily sets out what the professional is required to do in terms of responding and sets out the claim overall.
Where possible, it should also include an estimate of the financial loss suffered as a result of the negligence but where that is not possible then an explanation as to why that cannot be provided and when it will be provided.
Importantly, the Letter of Claim should also let the professional know whether the claimant is willing to refer the dispute to adjudication and if so, provide nominations for that. If on the other hand the claimant does not wish to refer the matter to adjudication then the reasons for that must also be explained.
Step 3
Receipt of the Letter of Claim should be provided within 21 days but more importantly, a full response to the allegations of negligence should be provided within 3 months. The response must be in the form of an open letter setting out which parts of the claim are admitted and those which are denied and whilst this is not a formal defence, the court may impose sanctions later if it differs materially from the defence in later court proceedings.
An open response letter may also be accompanied by a without prejudice letter of offer to settle and where that happens, the protocol requires that the parties be allowed time to negotiate with proceedings not being issued until 6 months from the date of the acknowledgement of the Letter of Claim.
Step 4
On exhaustion of the above, court proceedings may be the only way forward, subject to all avenues to facilitate settlement being considered. That includes, arbitration, mediation, adjudication and ombudsman schemes each of which have their unique framework for settling disputes depending on the issues involved in a dispute – not one size fits all.
As you can see from the above, it can take a minimum of around 5 months before a claimant is in a position to issue a professional negligence claim in court.
The reality is that the parties will agree between them extensions of time to the timetable in order to allow themselves additional time to exchange information and documents. It is not unusual for it to be at least 6 months after the sending of the preliminary notice before a claimant can issue a professional negligence claim assuming that the claim has not been settled during that period.
If you have a claim against a professional adviser – contact our friendly professional negligence team today and we can help. We have won many claims for our clients, including claims against solicitors, accountants, tax advisers and surveyors. Whatever the nature of your claim – we can help.
