Following on from yesterday’s 5 tips for a professional negligence claim, here are 5 more tips to make up 10 tips to ensure your claim goes smoothly.
- Obtain legal advice – it is at this point you would contact a solicitor as these cases can be extremely detailed and complex in nature. Legal principles and case law will be referred to by your legal representative who will analyse whether you have a reasonable claim and advise as to the recoverability of compensation i.e. there will only be compensation for those losses which could have been reasonably foreseen at the time of the advice or service provided by the professional. There may also be additional claims for breach of trust or breach of contract that you were unaware of from the outset.
- Before bringing a claim to avoid unwanted costs check any insurance policy you may have which may include legal expense cover, commonly found in house and car insurance policies.
- ADR – before and at each stage of a claim Alternative Dispute Resolution methods should be considered, such as mediation. You must also check any contract you may have with the professional in case this is a term of the contract following any dispute.
- Bringing a claim – If your solicitor thinks you have a claim then there are certain professional negligence pre action protocols to which the procedure is intended to try to settle a claim before any costs of court proceedings are incurred. For example; the Defendant professional will need to be sent a ‘Preliminary Notice’ setting out brief details of the grievance, followed by a detailed ‘Letter of Claim’ with copies of supporting documents. You should then receive a ‘Letter of Acknowledgement’ within 21 days, followed by a ‘Letter of Response’ or ‘Letter of Settlement’ within 3 months of the Letter of Acknowledgment. Thus timescales are incredibly important.
It is important at this stage for your solicitor to seek to establish whether the defendant has insurance cover in place to defend the claim and meet any damages payable and, if not, whether they have sufficient personal assets instead.
Your solicitor may consider making settlement offers such as a Part 36 offer, whereby at the end of a case the judge will consider the reasonableness of the parties in the proceedings to which a Part 36 offer may factor when determining whether any party should be penalised as to costs.
- Court proceedings – if a settlement is not reached following the pre-action protocols then your solicitor will consider commencing proceedings. Your solicitor should advise you on costs and timeframe and whether any experts opinion, i.e. someone acting in the same capacity as the professional, is required in your particular case.