The Professional Negligence Pre-Action Protocol

Pre-action protocols are steps that should be taken before initiating court proceedings. They provide guidance for the claimant (the party who has experienced the negligence) and the defendant (the individual or organisation that the claim is being brought against).

It’s important to note the time frames of pre-action protocols and understand how they can impact your claim to improve the likelihood of your case being awarded compensation.

What is a pre-action protocol?

The Professional Negligence Pre-Action Protocol 2001 applies to all professional negligence cases except those where other specific protocols are used.

This type of protocol encourages the early exchange of information and provides direction for claimants to settle their professional negligence case without going to court.

All issues between claimants and defendants must be identified and all relevant evidence gathered before court proceedings begin. This means cases run more smoothly if a resolution can’t be met outside of court. Failing to comply can be costly.

What is the Practice Direction for pre-action conduct?

There are rules you and the defendant must follow to make sure that no time and money is wasted on a case before going to Court. Guidance on meeting these is provided in the Practice Direction on pre-action conduct.

It sets out steps that need to be followed before the court can be involved. It means the claimant and the defendant must:

• Share any relevant documents
• Share the cost of expert evidence where possible
• Write a preliminary letter which the defendant must acknowledge

This ensures that pre-action conduct will not be used to secure an unfair advantage for one party.

The Practice Direction for pre-action conduct states that “litigation should be a last resort“.

How does the pre-action protocol work?

The pre-action protocol sets out the various steps that claimants and defendants should take. These are to be taken with strict guidelines and compliance within the timescales provided.

Various pre-action protocol letters are sent out between the parties as follows:

Preliminary notice

Claimants must send a preliminary notice that declares the intention to make a claim. This will explain the grounds on which the claim is being made, provide factual details of what occurred, and outline how any financial figure being sought has been calculated.

Letter of acknowledgement

Defendants have 21 days to acknowledge the preliminary letter but are not legally required to take any action at this stage.

However, most defendants contact insurers and begin to gather all the relevant evidence so it is ready for future use if the case moves forward.

Letter of claim

The letter of claim is issued after all investigations by the claimant and their representatives are complete and all necessary evidence has been gathered.

This letter should set out each aspect of the claim, including the chronology, legal argument, any supporting documents, and any evidence gathered. It should also show how the financial loss will be calculated or how it has been incurred.

Claimants should ask the defendant to pass on the details and the letter of claim to its professional indemnity lawyers.

Letter of acknowledgement

Defendants should acknowledge the letter of claim within 21 days of receiving it.

Letter of response

The defendant has three months to provide a letter of response. This should include a detailed reply to each section of the claim and clearly state whether liability is admitted in full, partially, or denied completely.

If the defendant denies the claim, they should provide reasons in detail for each section of the claim.

Any evidence gathered that will be used to dispute the claim against them should also be included here, as well as their version of events.

Letter of settlement

If the defendant wants to make an offer of settlement, they should send a letter of settlement alongside the letter of response.

Certain issues with the claim can still be disputed and more information can be requested to offer a settlement figure.

Court proceedings

If there is no letter of settlement and the defendant completely denies the claim against them in their letter of response, then court proceedings can begin.

In other instances where there is only partial acknowledgement or it seems progress can be made within the correspondence, both parties should commence negotiations. This is with the aim of resolving the dispute within six months of the date that the letter of acknowledgement was provided. If an extension cannot be agreed upon, the matter can go to court.

When doesn’t the Professional Negligence Pre-action Protocol apply?

The pre-action protocol is not used against construction or healthcare professionals or in personal injury claims, because more specific protocols apply.

In the instance of negligence claims against property professionals like architects and engineers, these cases would fall under the Construction and Engineering Disputes Pre-Action Protocol.

Similarly, with medical negligence by doctors, nurses, and other healthcare workers, the pre-action protocol is more specific to clinical disputes.

What happens if a party fails to comply with the pre-action protocol?

Failure to comply with any aspect of the pre-action protocols will be taken into account during any court proceedings that follow. The party that failed to comply may be charged additional fees or have any award from the court reduced.

We’re here to help

We understand that making a professional negligence claim alone can be daunting, but our expert team can do it for you.

We’re here to guide you every step of the way when it comes to the Professional Negligence Pre-action Protocols. We’ll be happy to answer your questions and help you claim the compensation you deserve, so don’t hesitate to get in touch.

Please call us on 0800 234 3234 or contact us and a member of our legal team will call you back.