If you have received advice and information from a professional that falls below the standard you are entitled to expect, you may be able to make a claim for professional negligence.
There is a strict process to follow in bringing a case and it is important to deal with each step in turn. We take a look at the pre-action protocol that you will need to observe.
What is Professional Negligence?
If you engage a professional such as an accountant, financial advisor, architect, insurance broker, solicitor or surveyor, they should provide a reasonable level of care and skill. This is judged by the standard that is expected of a competent professional in their area of expertise.
Where the service provided falls below this level and you suffer losses as a result, this is classed as professional negligence. Examples include incorrect advice, negligence that leads to errors or failings, excessive delays in completing work and missing deadlines.
Claiming Compensation for Professional Negligence
If you have suffered financial losses because of professional negligence, you are advised to seek legal advice on bringing a claim. It is important to mitigate your losses where possible and to ensure that your claim is started within the time limit for bringing legal action, which is usually six years from the date on which the negligence occurred.
What are Pre-Action Protocols?
The pre-action protocol is a series of steps that the courts require the parties in a case to go through before legal proceedings are commenced. The steps are annexed to the Civil Procedure Rules and there are different pre-action protocols to follow depending on the type of action you will be bringing, including a specific pre-action protocol for professional negligence claims.
Pre-Action Protocol Objectives
Pre-action protocols are effectively codes of good practice and aim to ensure that both parties:
- Understand the issues at stake in the case and share relevant information and documents
- Make informed decisions as to how to proceed and also whether to proceed with a case
- Attempt to settle the dispute without legal action or at least agree on some of the issues of the case
- Reduce the costs involved in the case
- Manage the proceedings efficiently if the court is unavoidable
Are Pre-Action Protocols Mandatory?
You are strongly advised to consider pre-action protocols mandatory. If either party fails to fully follow the protocols, including adhering to time limits, then the court is likely to take this into account in reaching its judgement.
Where one party has not adequately followed the steps in the pre-action protocol, for example, by failing to provide full information in respect of the claim, the court could penalise them by requiring them to pay more of the other side’s legal costs than they might otherwise have had to.
In general, it is expected that both parties will act reasonably. Minor deviations from the protocol are not likely to be penalised, however, you should endeavour to follow the correct procedure as far as possible.
Professional Negligence Pre-Action Protocol
The steps to be followed to comply with the professional negligence pre-action protocol are as follows:
Preliminary Notice
The first stage is to make the professional in question, who will be known as the defendant, aware that you will be bringing a claim. You can send this once you are fairly certain that you wish to go ahead with the claim.
The notice should be addressed to the professional and should ask them to notify their indemnity insurer of the potential claim without delay. The notice should also include the following information:
- Your name and that of any other claimant
- A brief outline of your grievance
- A rough estimate of the amount of your claim, if it is possible to calculate this
Letter of Acknowledgement
The defendant should acknowledge receipt in writing of your preliminary notice within 21 days of receiving it. They are likely to advise their insurer of the claim at this stage and their insurer will generally instruct their solicitors to handle the defence.
The defendant’s legal team will also start to put together any relevant documents in respect of the case.
If you do not progress the matter within six months after sending the preliminary notice, you need to contact the defendant again and advise them whether or not you intend to pursue the claim. If you are not sure, you should try to let the defendant have a time estimate for when you believe you will be able to let them know.
Letter of Claim
You will need to put together details of what has happened together with evidence in support of this. Once you have all of the available information, you can draft a letter of claim. You may prefer to have this drawn up by a solicitor as it is important that all of the relevant facts are included and that it is set out as a strong legal argument as this is the document that will form the basis of your case.
The letter of claim should include the following information:
- Your name and that of any other claimant
- A chronological list of the events on which the claim is based
- A list of the documents that are included
- A list of documents you are requesting from the defendant
- The allegations you are making about the defendant’s failings in dealing with your matter and what should have happened if they had acted properly
- An explanation of how the mistakes or negligence caused your losses
- An estimate of the amount of the losses you have sustained and for which you are claiming compensation together with documents supporting this
- Whether you want something other than financial compensation
- Details of any experts you have appointed to deal with your case
- Whether you wish to go to the adjudication as an alternative to court and if so, details of a selection of three adjudicators whom you are prepared to use. Alternatively, you should give a reason if you will not consider adjudication
- Copies of any other letters of claim you have sent to other parties in respect of your claim
You should request that the defendant send a copy of your letter of claim to their indemnity insurer.
Letter of Response
The professional has three months from the date of their letter of acknowledgement in which to look into your claim and send a letter of response.
If they are unable to provide this within the time limit, they should let you know as soon as possible and explain their delay. It would be reasonable to allow them longer to send their letter of response if asked to do so.
Both you and the defendant should provide the requested documents promptly.
If the defendant will themselves be claiming against someone else, they should let you know and give you this person’s identity.
The letter of response should include the following:
- Whether the claim is admitted
- If only part of the claim is admitted, clear details of which part this is
- Why the defendant does not agree with the claim and what details, if any, are disputed
- Any further information the defendant needs if they are unable to admit or deny the claim at this stage
- The defendant’s estimate of your losses, if this differs from your own. If this is not yet available, then they should let you know when they anticipate that they will be able to provide it
- Copies of key documents
- While the letter of response is not the same as a formal defence, it should generally include the points that the defendant will rely on in due course if the case does go to court
Letter of Settlement
It is also open to the defendant to send a letter of settlement. This can either be instead of or as well as a letter of response.
Unlike the letter of claim and letter of response, the letter of settlement can be written ‘without prejudice’, meaning the contents will remain between both you and the defendant and not be revealed to the court.
It can include an offer of settlement made under Part 36 of the Civil Procedure Rules. If you subsequently fail to beat the offer at court, you are likely to be liable for the defendant’s costs from 21 days after the offer was made onwards.
The letter of settlement should include the following:
- The defendant’s opinion as to your claim, including points which they dispute, unless this has already been set out in a letter of response
- A proposal for settlement
- A request for any further information that is required before a proposal for settlement is made
- Copies of any new documents that the defendant is relying on in their case
Further Correspondence
If the defendant disputes the claim entirely and does not offer any settlement, you can consider starting court proceedings.
Otherwise, you should consider entering into negotiations with the defendant to settle within six months from the date of the letter of acknowledgement.
Identifying the points in contention will help both parties focus on resolution. If longer than six months is needed, this can be mutually agreed upon. If you do not wish to extend the period of negotiation, you can start court proceedings.
Exchange of Documents
Sharing documents early on in the process is encouraged to help the parties resolve matters efficiently and with a minimum delay. Both you and the defendant should provide documents that are reasonably requested as promptly as possible, although neither party should use the process as a fishing expedition.
Engaging Experts
You may need to engage an expert to set out the extent of the negligence. They will be able to prepare a report explaining what should have happened and what was wrong. The report can then be disclosed to the other side.
Alternative Dispute Resolution
It is generally faster and more cost-effective to use alternative dispute resolution rather than the courts. You may be able to reach a negotiated settlement or use a professional to decide the matter. Options include:
- Mediation, where a neutral mediator will help you explore possible solutions
- Arbitration, where a legal professional will hear and decide your case
- Early neutral evaluation, where a legal professional will examine the evidence and give their opinion as to what the court might decide
- Adjudication, where an independent adjudicator gives their decision in respect of the case
The courts prefer that the parties attempt to deal with the matter by way of alternative dispute resolution wherever possible. Refusal to engage could mean that a party is penalised when it comes to the payment of the costs.
Contact Our Professional Negligence Solicitors
At Witan Solicitors, we represent clients in professional negligence claims. We can advise you on the strength of your case and the options open to you. We can also work to negotiate a settlement on your behalf or guide you through the alternative dispute resolution process.
If you would like to speak to one of our expert professional negligence solicitors, email us at info@witansolicitors.co.uk or fill in our contact form and we will talk through your situation with you and discuss the options available. We have offices in Birmingham, Northampton and London.
