The professional negligence pre action protocol applies in the event a claim is made against a professional as a result of their alleged negligence or equivalent breach of contract or breach of fiduciary duty.
What is the professional negligence pre-action protocol?
In England and Wales civil litigation is governed by the Civil Procedure Rules (or CPR). Together with accompanying practice directions, these represent a single code of rules setting out how a case is to be conducted by the parties in civil proceedings.
Annexed to the CPR are a number of pre action protocols. These protocols set out enforceable standards for the efficient conduct of pre-action litigation. Each protocol outlines the steps the court would normally expect prospective parties to take before commencing proceedings for particular types of civil claims, including professional negligence.
The purpose of the pre-action protocol is to encourage the exchange of information between parties at an early stage, improve pre-action communication and to provide a clear framework within which the parties can explore a resolution to a claim without the need for a full court hearing.
This includes establishing a reasonable process and timetable for the exchange of information relevant to the dispute, as well as setting standards for the content of correspondence and the conduct of pre-action negotiations.
The aims of the professional negligence pre-action protocol
The aims of the professional negligence pre action protocol are to enable parties to prospective claims to:
- Understand and identify the issues in dispute through sharing information and relevant documentation
- Make decisions about whether and how to proceed
- Try to settle the issues without proceedings or reduce the issues still in dispute
- Consider a form of alternative dispute resolution to assist with settlement
- Avoid unnecessary expense and reduce the cost of resolving the issues
- Support the efficient management of proceedings where litigation cannot be avoided.
The professional negligence pre action protocol is not intended to replace other forms of alternative dispute resolution, such as mediation, arbitration or adjudication. Where available, you are still encouraged to consider whether these forms of dispute resolution should be used. Any refusal to engage in ADR might be considered unreasonable by the court and result in costs sanctions.
If attempts are made to use ADR, but this fails to resolve the dispute, the professional negligence pre action protocol should be used before court proceedings are started, adapting it where appropriate.
When does the professional negligence pre-action protocol apply?
What constitutes a “professional” under the professional negligence pre action protocol is left undefined, although this issue should be dealt with by the parties reasonably and proportionately, in accordance with the principles underlying the protocol.
There are however two specific exemptions; the protocol is not intended to apply to claims against construction professionals and healthcare providers.
If you have a claim, for example, against an architect, engineer or quantity surveyor, you should refer to the Construction and Engineering Disputes protocol.
Similarly, if you have a claim against a healthcare provider, you should use the pre-action protocol for the Resolution of Clinical Disputes.
Steps to be taken before issuing a professional negligence claim
Under the professional negligence pre action protocol, there are a number of practical steps that the parties should take before issuing a claim at court. These should include the following:
The claimant should notify the professional in writing of the possibility of a claim being brought against them. This “preliminary notice” should identify the claimant and any other parties, briefly outline the grievance against the professional and, where possible, indicate the financial value of the potential claim.
The professional and/or his professional indemnity insurers should acknowledge receipt of the preliminary notice within 21 days.
Having decided there are grounds for a claim against the professional, the claimant should then write a Letter of Claim, enclosing any key documents and setting out the following:
- a chronological summary of the facts on which the claim is based
- the nature of the allegations
- an explanation as to how the professional’s negligence has caused the financial loss claimed
- an estimate of the financial loss and how this is calculated
- any form of non-financial redress sought
- any reasonable requests for documents that are held by the professional
- the identity of any expert appointed
- a request that the Letter of Claim be forwarded to the professional indemnity insurers
- an indication whether there is a willingness to refer the dispute for adjudication, proposing three adjudicators, or reasons why not.
The prospective defendant should acknowledge the Letter of Claim within 21 days of receipt. However, the professional will have 3 months to investigate and respond fully, with an expectation on the claimant to agree to any reasonable requests for an extension of time.
Having completed the necessary investigations, and in any event within the 3 month or extended time period, the professional should respond to the claimant by way of a Letter of Response, a Letter of Settlement or both. The Letter of Response should enclose any key documents and set out the following:
- any admission to the claim, or parts of the claim
- if denied, the professional’s version of events
- if unable to admit or deny the claim, an explanation as to why, with a request for any further information required
- if the professional disputes the estimate of the claimant’s financial loss, the professional’s own estimate.
If the claim is denied in its entirety, with no Letter of Settlement, it is open to the claimant to commence court proceedings. Otherwise, the parties should commence negotiations with the aim of resolving the claim within 6 months of the date of the Letter of Acknowledgment.
The parties should consider if it is necessary to obtain expert evidence, and whether this can be restricted to that which is reasonably required to resolve the dispute, eg, the use of a joint expert or shared use of reports obtained pre-action.
The parties should stocktake their respective positions following exchange of information and, at the very least, seek to reduce the matters in dispute before the claimant issues proceedings.
If proceedings need to be issued to comply with the statutory time limit for commencing court proceedings, but before the parties have followed the procedures set out within the professional negligence pre action protocol, the claimant can request a standstill agreement. This is where is it agreed that a limitation defence will not be pursued.
Alternatively, a claimant may commence court proceedings and invite the professional to agree to an immediate stay of the proceedings to enable the protocol procedures to be followed. If the professional does not consent to a stay, the claimant would need to apply to the court.
Consequences of non-compliance with the pre action protocol
When exercising its powers of case management or considering the question of costs once a professional negligence claim is issued, the court will always look to whether or not a party has complied with the CPR and its accompanying parts. This includes the professional negligence pre action protocol.
Any failure to comply with a rule, practice direction or protocol, without good reason, can result in sanctions being imposed by the court, including costs penalties.
When deciding whether to impose a sanction, the court will look at whether the parties have complied in substance with the relevant principles and requirements under the professional negligence pre action protocol. It will also consider the effect any non-compliance has had on another party.
The court is not likely to be concerned with minor or technical shortcomings. However, the court may decide that there has been “substantial non-compliance” in the following circumstances:
- A party has not provided sufficient information to enable the objectives of the professional negligence pre action protocol to be met.
- A party has not acted within a time limit set by the professional negligence pre action protocol, or within a reasonable period.
- A party has unreasonably refused to use a form of alternative dispute resolution, or failed to respond at all to an invitation to do so.
In the event that the professional negligence pre action protocol does not specifically address a problem that arises during the course of corresponding with the other side, the parties should comply with the spirit of the protocol by acting reasonably.
Should I seek legal advice?
Professional negligence disputes can be both legally and factually complex, requiring expert opinion on breach of duty, causation and quantification of the claim. Further, when bringing or defending such a claim, the parties must also comply with the detailed requirements of the professional negligence pre action protocol – adding a layer of procedural complexity to the dispute.
A lawyer specialising in professional negligence claims can guide you through the legal, factual and procedural pitfalls, ensuring that if the dispute cannot settle without going to court, that you do not face additional cost penalties for any failure to comply with the rules.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.