If a professional you have instructed has been negligent, you can sue them in order to recover any losses which their negligence has caused you to suffer. However, it is not always necessary to issue court proceedings in order to recover your losses. It is often possible to reach a settlement through alternative dispute resolution (ADR) prior to court proceedings being issued. In many cases, the professional’s insurer may wish to avoid incurring unnecessary legal costs in fighting a hopeless case and will prefer to simply reach an early settlement.
Before you issue proceedings, parties should follow the Professional Negligence Pre-action Protocol process. This is a specific procedure that the courts encourage parties to follow before issuing proceedings. The idea is so that both parties know exactly where the other stands before the expense of Court. Following the pre-action protocol can assist in early settlement of professional negligence claims.
The first step in the process is writing a letter of claim. This is the Claimant’s first opportunity to set out their case to the defendant; e.g. the client’s letter to the negligent solicitor. The pre-action protocol sets out a number of criteria which the claimant must include within the initial letter of claim. We shall look at what is required within this article, using the example of a claim against a solicitor.
Details of the parties
First of all, the claimant must include in his letter of claim the obvious details such as the names and addresses of the parties involved – i.e. the client and solicitor practice along with the requisite names and addresses. Thereafter, the letter should set out details of any associated parties. These could include other parties involved in the matter or perhaps an expert who was instructed in the initial case.
Within the body of the letter of claim the client should set out the background of the case. The background does not have to give every detail of the case from beginning to end. However, a clear background is required; one which would allow an objective person to understand the nature of the instruction and conduct of the professional.
Following this, the letter should set out the allegations of negligence. It should be clear from reading the letter as to what the solicitor has done incorrectly/negligently. You should also set out what the solicitor’s correct course of action should have been.
The letter should then link the allegations of negligence to loss which the claimant has suffered. The losses should be detailed and exact figures provided. It is this loss which the client is requesting to be remedied.
ADR and time limits
The conclusion of the letter of claim should set out that the claimant is willing to engage in ADR and the dates by which the letter of claim should be acknowledged and responded to. The defendant is required to acknowledge the letter of claim within 21 days and to provide a response within 3 months of the date of the acknowledgment.
The importance of the letter of claim should not be underestimated. It is the opportunity for the client to fully set out its case and its strengths. A strong letter of claim can lead to the insurers of the solicitor deciding that it will have to reach a settlement and remedy the loss which has been suffered by the claimant.