WHAT PRE-ACTIONS STEPS ARE NECESSARY?
When considering a claim against a professional, perhaps a firm of solicitors or surveyors, potential claimants are required to follow the Professional Negligence Pre-action Protocol before issuing their claim.
In practice, this means that as soon as it is known that there is a reasonable chance of a claim against the professional being pursued, a “preliminary notice” must be served, giving general details of the claim, including the grievance, the parties involved and the financial value. The professional should acknowledge receipt within 21 days but need do nothing else.
If a claimant decides that there are formal grounds for a claim, a Letter of Claim should be sent. This should include:
- The identity of any other parties involved.
- A clear chronological summary, including key dates and key documents.
- Any reasonable requests which the claimant needs to make for documents.
- The allegations against the professional.
- An explanation of how the alleged error has caused the loss claimed.
- An estimate of the financial loss.
- Confirmation of whether or not an expert has been appointed.
- A request that a copy of the Letter of Claim be forwarded immediately to the professional’s insurers, if any.
The professional should acknowledge receipt within 21 days and send a formal Response to the Letter of Claim (or a Letter of Settlement or both) within three months of the acknowledgement (or, where necessary, seek an extension of time).
As to the Response:
- If the claim is admitted, the professional should say so
- If only part of the claim is admitted the professional should make clear which parts are admitted and which are denied.
- If the claim is denied, the professional should provide his version of events.
- If the professional is unable to admit or deny the claim, the professional should explain why and identify and further information which is required.
- If the financial loss is disputed, it should set out the professional’s estimate.
To the extent not already exchanged, key documents should be enclosed.
If the professional sends a Letter of Settlement, it should:
- Set out the professional’s views on the claim identifying those issues which the professional believes are likely to remain in dispute and those which are not.
- Make a settlement proposal or identify any further information which is required before the professional can formulate its proposal.
- Where additional documents are replied upon, copies should be provided.
If the Letter of Response denies the claim in its entirety and there is no Letter of Settlement, it is open to the claimant to commence court proceedings. Otherwise, negotiations should commence with the aim of resolving the claim within 6 months of the date of the Letter of Acknowledgement.
There is scope for extending this time limit, but in the absence of agreement, it will then be open to the claimant to commence court proceedings.