Before you go to court: Following the Pre-action Protocol
It may seem tempting for someone with a claim for professional negligence to commence court proceedings immediately – perhaps even out of the blue.
While this may have been a viable tactic in the past, the courts encourage parties to resolve their disputes whenever possible. This includes attempting to resolve them before legal proceedings have even started.
For this purpose, the Professional Negligence Pre-action Protocol is tailored to help the parties set out, narrow and potentially resolve issues or entire claims at an early stage. By encouraging the exchange of relevant information within specific time periods a settlement may be agreed, saving both parties a great deal of money and stress. In cases where settlement cannot be agreed, the Pre-action Protocol enables court proceedings to run more efficiently.
Among other things, the Pre-action Protocol requires the following steps to be taken:
- The claimant should notify the professional that they might bring a claim against them for professional negligence. They should say why and how much their claim might be worth;
- The professional should acknowledge this notice within 21 days;
- As soon as a claimant decides that it has grounds for a legal claim against the professional, they should write a Letter of Claim to them, setting out in full a chronology of the facts of the claim, the allegations of negligence, and an estimate of the loss suffered. Supporting documents should also be provided;
- The professional should acknowledge the Letter of Claim, investigate, and provide a full response to the client. They may also choose to make an offer to settle the matter; and
- The parties should consider whether a form of alternative dispute resolution (such as mediation) could help to settle the claim and avoid court proceedings.
A solicitor can advise you on fulfilling the requirements of the Pre-action Protocol. Failure to comply with the Pre-action Protocol is highly likely to attract financial penalties from the court when dealing with the issue of legal costs.