professional negligence pre-action protocol

Pre-Action Protocol for Professional Negligence - your frequently asked questions

What is the Pre-Action Protocol for Professional Negligence?

The Pre-Action Protocol for Professional Negligence (“the Pre-Action Protocol”) forms part of the Civil Procedure Rules. It applies when someone wishes to claim against a ‘’professional’’ as a result of that professional’s alleged negligence or equivalent breach of contract, or breach of fiduciary duty.

What is the purpose of the Pre-Action Protocol?

It sets out a code of good practice with the aim for parties to exchange as much information and documentation as possible in the early stages in relation to a prospective professional negligence claim. This is so that parties can try and reach an amicable solution. It encourages parties to see issuing court proceedings as a last resort.

Parties are encouraged to cooperate openly in the exchange of relevant information and documentation. The protocol sets out steps/guidelines which parties are generally encouraged to follow, before considering commencing court proceedings.

Does the Pre-Action Protocol apply to claims against any professional?

In brief, no. There are other protocols that apply to claims against:

  • Architects, engineers and quantity surveyors: the Pre-action Protocol for Construction and Engineering Disputes; and
  • Healthcare providers: the Pre-Action Protocol for Clinical Disputes.

However, the Pre-Action Protocol does apply in claims against solicitors, accountants, financial advisers, IT professionals and most other professionals.

What are the aims of the Pre-Action Protocol?

  • To understand and properly identify the issues in dispute in the proposed claim and share information and relevant documents;
  • Make informed decisions as to whether and how to proceed;
  • To try to settle the dispute without proceedings or reduce the issues in dispute;
  • Avoid unnecessary expense and keep down the costs of resolving the dispute; and
  • Support the efficient management of proceedings where court proceedings cannot be avoided.

What happens if I don’t follow the Pre-Action Protocol?

Parties should try to follow the Pre-Action Protocol as far as possible. If they don’t follow it and the claimant subsequently issues proceedings, the Court has the discretion to award sanctions. Such sanctions are usually in relation to costs.

How long do I have?

The usual limitation periods apply for professional negligence claims. The claimant will usually therefore comply with the Pre-Action Protocol before the limitiation period expires, allowing time to issue court proceedings within the time limit.

However, the parties can agree a standstill agreement to extend the period in which a limitation defence will not be pursued. Alternatively, a claimant may commence proceedings and invite the professional to agree to an immediate stay of the proceedings to enable the protocol procedures to be followed before the case is pursued.

What is the procedure?

The Pre-Action Protocol briefly sets out the following timetable as a guideline:

  • The claimant sends out a Preliminary Notice to the professional with a brief outline of their claim. The professional should acknowledge receipt of this within 21 days.
  • The claimant should then send a more detailed Letter of Claim to the professional. Again, the professional should acknowledge receipt within 21 days.
  • The professional has three months from their acknowledgement to investigate and respond to the Letter of Claim. This is done by sending the Claimant a Letter of Response and/or a Letter of Settlement.
  • If the professional cannot meet the three month deadline, the they should explain this to the claimant as soon as possible and, in any event, before the end of the three-month period.
  • If the professional denies the claim in its entirety and there is no Letter of Settlement, the claimant can then issue court proceedings.
  • Where the professional does not give a complete denial and/or does not send a Letter of Settlement, the parties should then commence negotiations to try and resolve matters without the need for formal court proceedings.
  • If the parties cannot agree a settlement, the claimant may issue proceedings.

Does this mean I don’t have to go to Court?

The aim of the Pre-Action Protocol is to encourage parties to settle without going to Court. The parties should consider whether some form of alternative dispute resolution (ADR) may assist settlement without issuing at court. Indeed, the protocol asks the claimant to consider whether they would like to attempt adjudication from the outset. They must set this out to the professional in the Letter of Claim.

The claimant should not start court proceedings until the Letter of Response denies the claim in its entirety and there is no Letter of Settlement; or if parties have reached the end of the negotiation period.

Where possible, claimants should give 14 days written notice to the professional before proceedings commence.

If you have a potential claim against a professional, we recommend you seek legal advice as soon as possible. Call our specialist team today for a FREE initial discussion on 0800 988 7756.


Accountant professional negligence

Accountant professional negligence: FAQs

Individuals and businesses instruct accountants to deal with a range of financial matters. If you have employed someone as an accountant, it is only reasonable to expect that they will perform their role professionally and that they will not cause you to suffer a financial loss. Occasionally however, things can go wrong whereby you do end up suffering a financial loss as a result of the accountant’s negligence. So, what action can be taken? What is accountant professional negligence?

I have received poor service from an accountant. Can I make a claim?

In most cases, receiving poor service from your accountant is not enough to mean that the accountant was negligent. However, if the accountant is regulated by the Association of Certified Chartered Accountants (ACCA) or the Institute of Chartered Accountants in England and Wales (ICAEW), you may be able to make a complaint.

Can I sue my accountant?

As with all professional negligence claims, there are three elements that make up a successful claim. You must be able to show all three elements; therefore evidence is essential. 

1. An established duty of care

The accountant has a contractual liability towards you and a duty of care in negligence. The duties of the accountant will however primarily depend upon the agreement between them and you.

2. A breach of that duty

The accountant must have done something (or failed to do something) in breach of that duty of care. This will be conduct below the standard that would reasonably be expected of an accountant.

3. A loss caused by the accountant’s negligence.

In order to bring a claim against your accountant, you need to be able to show that their negligence caused you to suffer a financial loss.

Common types of accountant professional negligence

As an accountant’s role is broad, there are various examples of the types of negligence we might see. These include:

  • Failure to file tax returns on time
  • Incorrect share sale valuations
  • Negligent tax advice
  • Insolvency liabilities
  • Failure to detect fraud following an audit
  • Calculating PAYE correctly

How much is my claim worth?

This will depend on the circumstances of your case. A professional negligence claim is usually for damages to compensate you for the loss you have suffered and to put you back into the position you would have been in had the accountant acted reasonably in the first place.

In the recent case of Manchester Building Society v Grant Thornton UK LLP, the Court of Appeal decided that the defendant’s negligence had caused the claimant’s loss. However, the Court held that the defendant had not actually assumed responsibility for the claimant’s losses. Therefore, the claimant was not able to recover this as damages. This is because the defendant had been retained to advise on how business activities should be treated in the accounts. They were not responsible for the financial consequences of the claimant’s business activities.

Are there any time limits for bringing a claim?

There are strict time limits that apply if you wish to bring a professional negligence claim against an accountant. That time limit (“limitation“) is usually six years from the date of the negligence. There are, however, some exceptions and we would urge you to act as soon as you become aware of any potential negligence.

Do I need to go to court?

Not all professional negligence claims go to court. Indeed, court proceedings should be seen as a last resort and avoided wherever possible.

Many claims are resolved by negotiation and/or mediation. There is a Pre-Action Protocol which sets out a procedure for such claims to follow. Firstly, the claimant sends a letter of claim to the accountant, setting out the case against them. The accountant then has opportunity to respond, setting out their position. This can often set the wheels in motion to start discussing a settlement.

If you think your accountant has been negligent then you need to act as soon as possible. Our experienced professional negligence team is here to help. Call us today on 0800 988 7756 for a FREE no obligation discussion.


Where do we draw the line?

Boundary disputes and how to resolve them

Boundary disputes arising between neighbours are very common and can escalate unreasonably, often resulting in unnecessary costs which can spiral out of control.

A boundary issue can often be used as a ‘weapon’ when neighbours have had a falling out over something. Further, people’s actions can sometimes be disproportinate to the size and value of the land in dispute. A minor dispute can therefore quickly escalate and before you know it, you are faced with, or rush into, legal action.

So, where do we draw the line?

Love thy neighbour

Of course, we cannot choose our neighbours. Nevertheless, many of us will have the same neighbours for many years. Therefore the common sense approach is to try and reach an agreement with your neighbour, in order to resolve the issue amicably.

Talk to your neighbour; face to face if you can, and make a note of anything that has been agreed. If you feel uncomfortable approaching them then write down your concerns and send it to your neighbour instead. Or perhaps get a mutual friend to contact them on your behalf.

More often than not, the best policy is to find a compromise in order to maintain a good relationship with your neighbour. For example, sharing the costs for maintaining a fence or replacing a fence panel. Remember that you are neighbours and have to live next door to one another. Reaching an amicable agreement will cause far less stress and certainly be a lot less costly as well.

Evidence

Establishing the correct boundary and its positioning can be a minefield. These things are not always clear-cut, not to mention that boundary locations may vary over time. So where can we find evidence of where the true boundary lies and who owns the boundary structure (i.e. the fence, hedge or wall along the boundary).

Title plans or plans within the historic deeds may show general boundaries and some registers may also refer to the boundary in question. However not all titles/documents at the Land Registry provide the information you may be looking for. For example, the red line on the Land Registry title plan does not define the exact legal boundary. It merely gives an indication of the general location of the boundary. Further, not all title documents will indicate who has ownership of which wall or fence. You may find that looking at the title documents relating to your neighbour’s property may provide information not necessarily covered in yours.

There is also the availability of online resources such as Google Earth and Google Street View to assist with trying to obtain evidence.

Another option would be to appoint an expert surveyor to conduct a site visit and produce a report, giving their opinion on the correct boundary location. The surveyor will base this on the information they are given and what they observe on site.

Get some help

Sometimes discussions with your neighbour are not successful, and matters may reach an impasse between you. If this happens, there are various options for resolving the issue. We recommend seeking independent legal advice at the earliest opportunity.

A solicitor’s letter setting out the facts and possible implications if the matter was to escalate to Court often works to focus the parties’ minds. A solicitor will also advise you on the various methods of dispute resolution. For example, mediation can be a very successful method of resolving a boundary dispute. Court proceedings should be seen as a last resort and should be avoided wherever possible.

Our expert property disputes team can help if you have a boundary issue. If you have a boundary dispute, call us today on 0800 988 7756 for a free initial discussion.