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.
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.