If we are able to confirm merits then the next step is to follow the Pre-Action Protocol for Professional Negligence (“the Protocol”).
The objective of the Protocol is to assist the parties to achieve an early settlement of the claim, if that is at all possible, without the need for court proceedings. If court proceedings are started without the parties following the Protocol, the court can decide to impose sanctions.
The Protocol aims to ensure that all of the issues between the parties are properly identified within correspondence and that there is an early exchange of evidence; meaning that if cases cannot be settled they run more smoothly within the court system or alternative dispute resolution procedures, such as mediation.
Letter of Claim
Once the claimant’s investigations are complete and it is possible to set out comprehensive details of their claim, a Letter of Claim should be prepared.
The Letter of Claim should normally be an open letter and should set out a clear chronological summary (including key dates) of the facts on which the claim is based. Key documents should be identified, copied and enclosed with the letter. It should set out the allegations against the solicitor. What has been done wrong or not been done? What should the professional have done acting correctly?
There should also be a calculation of the estimated financial loss suffered by the claimant. Again, supporting documents should be identified, copied and enclosed with the letter. If details of the financial loss cannot be supplied, the claimant should explain why and should state when they will be in a position to provide the details. This information should be sent to the solicitor as soon as reasonably possible. If the claimant is seeking some form of non-financial redress, this should also be made clear.
Confirmation should be given as to whether or not an expert has been appointed and their details should be provided.
Finally, the claimant should also request that a copy of the Letter of Claim be forwarded immediately to the solicitor’s insurers, if any.
Letter of Acknowledgement
The solicitor or its representatives should acknowledge receipt of the Letter of Claim within 21 days of receipt.
Letter of Response
The solicitor then has three months from the date of the Letter of Acknowledgment to investigate and respond to the Letter of Claim by the provision of a Letter of Response and/or a Letter of Settlement.
If the solicitor cannot respond within this timescale, it should contact the claimant to explain the cause of the difficulty and confirm when it expects to conclude its investigations. The claimant should agree to any reasonable requests for an extension.
The Letter of Response should be an open letter and should be a reasoned answer to the claimant’s allegations. In simple terms, if the claim is admitted the solicitor should say so in clear terms. If the claim is denied in whole or in part, the Letter of Response should include specific comments on the allegations against the solicitor and, if the claimant’s version of events is disputed, the solicitor should provide their version of events.
Furthermore, if the solicitor disputes the calculation of the claimant’s financial loss, the Letter of Response should set out the solicitor’s own assessment. If an assessment cannot be provided, the Solicitor should explain why and when they will be in a position to provide an assessment.
The Letter of Response is not intended to have the same status as a Defence which is served during court proceedings. However, if the Letter of Response differs materially from the Defence, the court may decide, in its discretion, to impose cost sanctions on the solicitor.
At the same time as providing a Letter of Response (or sometimes instead) the solicitor can provide a Letter of Settlement, which may be on an open or without prejudice basis, making settlement proposals.
Further correspondence
If the Letter of Response constitutes a complete denial of the claim and there is no Letter of Settlement then the claimant can issue court proceedings. Our specialist professional negligence solicitors will be able to guide and assist you through this process should this be necessary.
In any other circumstances, or if it appears that progress can be made within correspondence; either in order to narrow the issues in dispute or to achieve settlement, then the parties should commence negotiations with the aim of concluding them within 6 months of the date that the Letter of Acknowledgement was (or should have been) provided.
If you would like to read the Protocol in full, you can find it here.