THE PROFESSIONAL NEGLIGENCE PRE-ACTION PROTOCOL: Legal proceedings as a last resort
Commencing legal proceedings in a professional negligence claim should be seen as the last resort.
The courts encourage parties to make every effort to resolve a professional negligence claim without the need for formal court proceedings. A set of guidelines has therefore been published called the Professional Negligence pre-Action Protocol.
Following the professional negligence protocol is not compulsory but anyone who fails to do so will probably end up being penalised by the court so we always ensure that the protocol is complied with.
Under the professional negligence protocol a claimant is required to give the negligent professional full details of the claim being made; including the allegations of negligence and the loss suffered as a result of that negligence. This information is contained in the professional negligence Letter of Claim.
The professional negligence Letter of Claim must be acknowledged by the professional (or their lawyer) within 21 days. The professional then has a further three months in which to investigate the negligence claim and submit a formal professional negligence Letter of Response.
Once this exchange of information has taken place the position should be a lot clearer. The professional may feel compelled to admit liability. Alternatively negotiations may follow on a “without prejudice” basis leading to an out of court settlement of the professional negligence claim.
The courts are also keen to encourage people to resolve professional negligence claims through mediation and this is an option that we consider in all cases.
