The Professional Negligence Pre-Action Protocol is designed to provide a framework for the early exchange of information between a professional negligence claimant and a professional negligence defendant.

When does the Pre-Action Protocol apply?

It is used in the majority of professional negligence cases.  For example, it applies to claims against solicitors, barristers, lawyers, surveyors and tax advisers.  It is applicable in cases of alleged negligence and breach of contract or fiduciary duty (breach of trust).

In fact, first-instance following of the Protocol is considered compulsory, and a court is likely to take an unfavourable view of any party that has chosen not to do so.

What are the exceptions?

The Pre-Action Protocol does not apply to cases involving claims against construction professionals, architects or engineers – in such cases, following the Construction and Engineering Disputes Pre-Action Protocol is the appropriate procedure.

Furthermore, a Claimant is allowed to commence Court proceedings without making recourse to the protocol if to do so would risk the claim being time-barred.

How does it work

The protocol came into force in 2001 in an attempt to reduce the need for in-court litigation.  The Courts' Practice Direction on Pre-Action Conduct states that "starting proceedings should usually be a step of last resort".

The process

• Preliminary Notice – the claimant should notify the defendant of his intentions to claim and should, where possible, include an estimate of its monetary value.
• Letter of Acknowledgement – the defendant is obliged to acknowledge receipt of the letter within 21 days.
• Letter of Claim – the Letter of Claim should provide a timeline of the circumstances leading to the dispute as well as a summary of the legal argument for damages.  Documents, supporting evidence and the opinion of expert witnesses should also, where appropriate, be present with the letter.
• Letter of Acknowledgement – the defendant should acknowledge receipt of the Letter of Claim within 21 days.
• Letter of Response – the defendant should respond to the arguments and details of the Letter of Claim. This should be done within three months of the Letter of Acknowledgement. However, many defendants seek extensions to this period, often with success, and the delays caused by this are a common criticism of the Protocol. The defendant's Letter of Response should make it clear whether liability is accepted or denied for the professional negligence claim. If liability is accepted, the defendant's Letter of Response should be accompanied by a Letter of Settlement.
• Court Proceedings – in the event that the defendant denies liability, the claimant may then commence litigation using the court system.

Healys professional negligence lawyers

Here at Healys we always seek to encourage early and advantageous settlement of a professional negligence case – this helps avoid costly and lengthy litigation. However, in cases where satisfactory early settlement cannot be reached, we are prepared to take court proceedings and to conclude a dispute aggressively, all the way through to a positive resolution.

For advice and support from our Brighton and London offices, use our call-back form, call directly on 020 7822 4106, or click through to our individual professional negligence lawyers.