Professional Negligence Protocol

The Protocol is a set of guidelines and steps to be followed before any court proceedings are issued. It aims to avoid the need for the courts to be involved unless absolutely necessary.

Most professional negligence cases pursued by us can be resolved without court proceedings, and this is helped by the provisions of the Protocol. A good outcome is usually achieved by robustly presenting the client’s case and pressing vigorously for a suitable settlement. Compliance with the Protocol helps a Claimant to put pressure on the opponent and encourages resolution of the claim.

The Claimant must send a detailed Letter of Claim setting out the history of the relevant events, explaining why the opponent was in breach of contract or negligent, identifying the losses the Claimant has suffered, and explaining which documents are relevant. Drafting the letter needs considerable care, and both the basis of the negligence allegation and how it brought about loss need to be well thought out.

If the Claimant does not have enough information to fully prepare a Letter of Claim – perhaps due to lack of documents or because it will take too much time to prepare a complete Letter of Claim – a Preliminary Notice can be sent. That can be useful, particularly to ensure that the professional’s insurers get to know about the claim or to request documents from the opponent. We often send a Preliminary Notice for one or both of those reasons.

The Defendant must acknowledge receipt of the letter of claim within 21 days and then provide a detailed reply within a further 3 months, accepting the claim or explaining in detail why not. It should also say if there is any challenge to the amount of the claim.

In principle, both sides will then know each other’s positions and they should be able to assess the merits of the claim. The most appropriate approach to taking the case forward, including an assessment of the likely level of settlement, should then be apparent. The parties can get on with taking the appropriate steps. The courts expect efforts to resolve the claim to be made before proceedings are issued. Those efforts may involve a settlement meeting or mediation.

Regrettably, professionals can be slow to contact their insurers and/or the insurers can be slow to deal with claims. It is disappointingly common for insurers to take longer than they should to respond. The courts can impose penalties for breaches of the Protocol. Those sanctions can sometimes be a useful spur to negotiation.

If a case cannot be resolved on sensible terms, proceedings can be issued. We are happy to pursue proceedings where necessary and to take them through to whatever stage is necessary to ensure the right outcome for our clients.  

To discuss this further and for more information please contact:

Peter Livingstone, Head of Dipsute Resolution, on 01935 846235 or 

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