The Pre-Action Protocol for Professional Negligence Claims sets certain standards which prospective parties to a professional negligence claim are expected to observe before Court proceedings are issued. The Protocol encourages the parties to exchange information at an early stage and to consider using a form of alternative dispute resolution.
When does the Pre-Action Protocol for Professional Negligence Claims apply?
The Protocol applies to claims against a professional other than construction professionals and healthcare providers. The Protocol does not just apply to negligence claims. It will also apply to claims for breach of contract or breach of fiduciary duty.
Where other procedures are available, for example such as internal complaints procedures, the parties are encouraged to consider whether they should be used. If another procedure is used and it fails to resolve the dispute, the parties are expected to then follow the Protocol.
A Claimant is, however, permitted to commence Court proceedings without complying with the Protocol if, by reason of complying with it, his claim may be time-barred. The Claimant is, however, expected, where possible, to give the professional 14 days notice of any Court proceedings.
What are the requirements of the Pre-Action Protocol for Professional Negligence Claims?
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.
Acknowledging the preliminary notice
Where a professional receives a preliminary notice he is expected to acknowledge receipt of it within 21 days of receiving it. He is under no obligation, however, to take any further action at that stage.
The letter of claim
The Protocol requires a Claimant to send a detailed letter of claim to the professional as soon as he decides that there are grounds for a claim against the professional. The Protocol sets out what the letter of claim should contain. It will normally be an open letter, as opposed to one which is marked “without prejudice”.
If the Claimant subsequently commences Court proceedings against the professional and the letter of claim differs materially from the Particulars of Claim in those proceedings this may be taken into account when the Court decides the question of costs.
Where a Claimant has sent a letter of claim to any other party in relation to the dispute or a related dispute, a copy of that letter of claim should accompany the letter of claim.
Acknowledging the letter of claim
Where a professional receives a letter of claim he is expected to acknowledge receipt of it within 21 days of receiving it.
The Professional’s response to the letter of claim
The professional has 3 months from the date of the letter of acknowledgment to respond to the letter of claim. If the professional is likely to have difficulty in responding within the 3 month period he should explain the problem to the Claimant as soon as possible and explain what is being done to resolve the problem and when he expects to respond.
The Claimant is expected to agree to any reasonable request for an extension of time.
The professional can respond by sending a letter of response or a letter of settlement or both. A response and a settlement can be contained within a single letter.
If the letter of response rejects the entire claim and there is no letter of settlement, the Claimant is entitled to commence Court proceedings. If this is not the case the parties are expected to commence negotiations with the aim of settling the case within 6 months of the date of the letter of acknowledgment. If the parties are unable to settle the claim within this period the parties are expected to agree, within 14 days of the end of the period, whether the period should be extended and, if so, by how long. The parties are also expected, in such circumstances, to agree what issues are in dispute and what are agreed. If an extension of time is not agreed then the Claimant may commence Court proceedings. The Claimant is expected, where possible, to give the professional 14 days notice of any Court proceedings.
Letters of Response
The letter of response will normally be an open letter and should deal with the following matters:
- If the claim is admitted this should be made clear;
- If only part of the claim is admitted it should be made clear which parts of the claim are admitted and which are denied;
- If the claim is denied in whole or in part, specific comments on the allegations against the professional should be made. If the Claimant’s version of events is disputed, the professional should set out his own version of events;
- The professional should identify any further information which is required if he is unable to admit or deny the claim;
- Where a professional disputes the Claimant’s estimate of its financial loss, the professional should set out his own estimate. If the professional is unable to provide an estimate he should explain why and should state when he will be in a position to provide an estimate (this information should be sent to the Claimant as soon as is reasonably possible).
If the professional relies upon documentation, copies of such documents should accompany the letter of response.
If the Claimant subsequently commences Court proceedings against the professional and the letter of response differs materially from the Defence in those proceedings this may be taken into account when the Court decides the question of costs.
Letters of Settlement
A letter of settlement will normally be marked “without prejudice”. It should contain the following:
- The professional’s views to date on the claim identifying any issues which he believes are likely to remain in dispute and those which are not (this is not required where a letter of response has been sent);
- A settlement proposal or identify any further information which is required before the professional can put forward such a proposal.
- If the professional relies upon documentation, copies of such documents should accompany the letter of settlement.
Requests for information and documentation
The parties are expected to promptly supply whatever relevant information or documentation is reasonably requested.
Where the Claimant has obtained expert evidence prior to him sending the letter of claim, the professional will have the right to obtain his own expert evidence prior to sending the letter of response or letter of settlement.
If the Claimant has not obtained expert evidence prior to sending the letter of claim, the Protocol encourages the parties to appoint a joint expert. If an agreement cannot be reached as to the appointment of a joint expert or if the parties are unable to agree the identity of a joint expert or his terms of appointment, the parties are free to appoint their own experts.
Alternative dispute resolution
The Protocol expects the parties to consider alternative dispute resolution procedure as an alternative to Court proceedings. The Courts take the view that litigation should be a last resort and may require parties to provide evidence that alternative means of resolving their dispute were considered.
The protocol sets out some of the options the parties may wish to consider for the purpose of resolving their dispute. However, the Protocol recognises that parties cannot and should not be forced to enter into any form of alternative dispute resolution procedure.
What happens if a party does not act in accordance with the Protocol?
The Court has a very wide discretion when it comes to awarding costs. When determining costs the Court will take into account the conduct of the parties including whether the parties have complied with the Protocol.
When considering whether a party has complied with the Protocol the Court will be concerned about whether the parties have complied in substance and is unlikely to be concerned with minor or technical shortcomings. The Court will also consider the proportionality of the steps taken compared to the size and importance of the matter, will take account of the urgency of the matter and will look at the effect of non-compliance on the other party.
A single minor breach by one party will not exempt the other party from following the Protocol. In fact, the Protocol recognises that it may be appropriate to adapt certain parts of the procedure set out in the Protocol in certain circumstances.