The Pre-Action Protocol for Professional Negligence Claims sets out details as to what a letter of claim for a professional negligence claim should contain.
The Protocol applies to claims against a professional other than construction professionals (who are covered by the Pre-Action Protocol for Construction and Engineering Disputes) and healthcare providers (who are covered by the Pre-Action Protocol for the Resolution of Clinical Disputes).
The Protocol does not just apply to negligence claims against professionals. It will also apply to claims against professionals for breach of contract or breach of fiduciary duty.
What are the requirements of the Protocol?
The preliminary notice
The Protocol encourages claimants, as soon as they decide that there is a reasonable chance that they will bring a claim against a professional, to notify the professional in writing. The Protocol sets out what the preliminary notice should contain. It should be addressed to the professional and should contain the following information:
- the name of the claimant and provide the identity of any other parties involved in the dispute or a related dispute;
- a brief outline of the claimant’s grievance against the professional;
- a general indication of the financial value of the potential claim, if it is possible to do so at this stage;
- a request that the professional informs his professional indemnity insurers, if any, immediately of the existence of the potential claim.
The letter of claim
The Protocol requires a claimant to send a detailed letter of claim to the professional as soon as they decide there are grounds for a claim against that professional. The Protocol sets out what the letter of claim should contain.
The letter of claim will normally be an open letter, as opposed to one which is marked ‘without prejudice’.
If court proceedings are subsequently commenced and the letter of claim differs materially from the particulars of claim in those proceedings, the court may take this into account when deciding the question of costs.
If the claimant has sent a letters of claim (or equivalent) to another party in relation to the dispute or a related dispute, a copy of that letter of claim should be sent to the professional with the letter of claim unless the claimant is claiming against someone else to whom the Pre-Action Protocol for Professional Negligence Claims does not apply.
The letter of claim should contain:
- the name of the claimant and the identity of any other parties involved in the dispute or a related dispute;
- a clear chronological summary of the facts of the case, including key dates. Key documents should be identified and copies of such documents should accompany the letter of claim;
- the allegations against the professional, for example, what they are alleged to have done wrong and/or what they are alleged not to have done;
- an explanation of how the alleged error has caused the claimant loss;
- an estimate of the financial loss suffered by the claimant and should explain how such loss is calculated. Any supporting documents should be identified and copies of such documents should accompany the letter of claim. If the claimant is unable to provide details of their financial loss at this stage, they should explain why and state when they will be in a position to provide the details. The Protocol requires the claimant to send this information to the professional as soon as is reasonably possible;
- any claim for non-financial redress, this should be made clear in the letter of claim;
- whether the claimant has appointed an expert or not. If the claimant has appointed an expert, their identity and discipline should be stated together with the date upon which they were appointed;
- a request that a copy of the letter of claim be forwarded immediately to the professional’s insurers, if any.