What is the Pre-Action Protocol for Professional Negligence?

The Pre-Action Protocol for Professional Negligence was introduced in July 2001 and sets out a “code of good practice” for Claimants to follow when making a professional negligence claim. Professional negligence cases refer to those claims against a professional party such as a Solicitor, Accountant, Surveyor, or Tax Advisor (for the avoidance of doubt, a claim against any medical professional or body would fall under the Pre Action Protocol for Clinical Disputes). These types of claims often involve breaches of contract or failure of a professional to perform their responsibilities to the required standard, leading to their client suffering damage or financial loss. 

Claims made against engineers or architects do not fall under this protocol, but instead fall under the Construction and Engineering Disputes Pre-Action Protocol.

The aim of the Professional Negligence Pre-Action Protocol is for Claimants to settle their cases without the need for Court proceedings. According to The Courts’ Practice Direction on Pre-Action Conduct, “starting proceedings should usually be a step of last resort.” Instead, a settlement should be attempted within the protocol or through use of negotiation and alternative dispute resolution (ADR).

One of the main benefits of the Protocol is that, claims which cannot settle without the help of the Court will be easier to manage within the Court system as all relevant evidence will have been gathered and all issues between parties should have been identified prior to issuing Court proceedings.

If the correct Protocols are not adhered to, and proceedings are issued prematurely, costs sanctions may be incurred for either the receiving party or the paying party on detailed assessment.

The protocol applies to all professional negligence cases; however, exceptions may be made by the Court for cases involving tight time constraints.

Steps Required Under the Pre-Action Protocol for Professional Negligence

Preliminary Notice: The initial step of the claim involves the Claimant sending their preliminary notice to include details of all parties. It should also give a brief outline of the claim as well as an estimation on the monetary value of the claim.

The Defendant should respond with a letter of acknowledgement within 21 days of receipt of the preliminary notice. No further action is required from the Defendant at this stage.

Letter of Claim: Upon conclusion of investigations by the Claimant, they should prepare a letter of claim including more comprehensive details of the claim. This letter should detail the Claimants’ allegations of the Defendant’s breach in their duty of care as well as a clear version of events. All other relevant documents and evidence, including expert evidence should also be included within this letter.

The Letter of Claim should provide details of the financial losses suffered by the Claimant, or state how they intend to calculate this if they are unable to do so at this stage.

The Defendant will have a further 21 days to acknowledge the letter of claim. The Claimant should ask the Defendant to pass the letter of claim onto their professional indemnity insurers immediately.

Letter of Response: Under the Protocol, the Defendant must investigate the Claimant’s allegations and prepare a detailed response to each part of the claim within 3 months of the date of the Letter of Acknowledgement. If the defendant requires an extension to investigate the claim, they should request this from the claimant who should not deny any reasonable request for extra time.

The Letter of Response should confirm whether the Defendant intends to deny or admit liability (in whole or in part) for the professional negligence claim. If the Defendant wishes to deny liability for the claim, they should provide details of their own version of events and evidence or additional documents which they intend to use in disputing the claim.

Letter of Settlement: If the Defendant wishes to offer a settlement for the case, they should do so within a Letter of Settlement. This should be sent to the claimant alongside the Letter of Response.

If the Defendant does not make an offer: If the Defendant denies liability for the case, and does not send a Letter of Settlement, the Claimant can issue Court proceedings at this stage. Alternative Dispute Resolution should also be considered at this stage. ADR can include negotiation, mediation or early neutral evaluation.

Costs Consequences for Non-Adherence to the Protocol

If the Pre-Action Protocol Professional Negligence procedure is not followed by either party, the Court may impose legal costs sanctions. These may take the form of disallowance of any costs for premature issuance of proceedings, when it is clear no efforts were made to settle the case pre-issue despite investigations remaining ongoing.

Although ADR is not compulsory, the Court is not likely to look favourably on a party who does not agree to participate and costs sanctions may be applied if ADR is not considered before making the decision to proceed to Court. Ultimately failure to engage in ADR is not only a breach of the Protocol, but also of the overriding objective, and unnecessarily increases the use of Court’s resources as well as escalating costs.

Therefore, it is vital that those who are bringing a professional negligence claim understand how the Protocol works to ensure that legal costs are reduced, delays are avoided and Court proceedings are only issued as a last resort.

Recovering Legal Costs under the Pre- Action Protocol for Professional Negligence Claims

Due to the complexities of professional negligence cases, legal costs can be substantial, and in some circumstances, the costs of the case can exceed the damages received by a successful Claimant.

In cases which have settled within the Pre-Action Protocol for Professional Negligence, the costs in relation to the Pre-Action Protocol are usually unrecoverable, unless specifically agreed. The reason for this being that these costs are not deemed to be ‘costs of’, or are incidental to the proceedings according to section 51 of the Senior Courts Act 1981. 

In some circumstances, parties may opt to make an all-inclusive offer for settlement at the damages stage. This all-inclusive offer will usually include payment for both damages and any costs incurred in the case. In most circumstances, Claimants will not agree to settle their case unless they can recover at least a portion of their legal costs. If they are unable to do so, they will be required to pay their Solicitor’s fees from their damages.

Defendants will be able to recover their costs in certain circumstances, such as if a claimant decides to discontinue their claim. However, this is quite an unlikely scenario as a Claimant is unlikely to discontinue their claim if they will be required to pay the Defendant’s costs. For these reasons, each party usually agrees to pay their own costs in unsuccessful professional negligence claims if they settle before Court proceedings are issued.

The conduct of parties also plays an important role in these types of cases, and will usually be taken into consideration by the Court if an Order for Costs is considered. Due to this, we would always advise that parties attempt to reach an agreement as settling the case as early as possible to avoid such costs sanctions by the Court.

How Can ARC Costs Assist?

ARC Costs are specialist Costs Lawyers and Costs Draftsmen with years of experience in all areas of legal costs, including costs in professional negligence claims under the pre-action protocol. ARC Costs can assist in maximising your costs recovery in any costs case, or in contesting any costs claim against you or your business.

If you settled your case within the Pre-Action Protocol for Professional negligence claims, and you believe the opposing party acted unreasonably, we may be able to assist in the recovery of your legal costs.

We regularly assist law firms, solicitors and litigants in persons throughout the process of recovering, negotiating or disputing legal costs. We can also assist regardless of whether you are the paying party or the receiving party.

Costs in professional negligence claims can often be very high due to the complexities which can arise in the cases. Costs which you are entitled to recover may also be further complicated by the facts of the case and the conduct by the parties to the claim. It is, therefore, vital that you make use of specialist costs advice to assist in recovering your costs.

At ARC Costs we deal with preparing a Bill of Costs on your behalf, ensuring this is accurate and served effectively to maximise recovery. We can assist in issuing costs only Part 8 proceedings where necessary and dealing with any contentions which the paying party may raise on your costs by way of Points of Dispute. We can also assist with negotiations between the parties to ensure settlement on costs can be reached as early as possible.

Alternatively, we can assist in acting on behalf of the paying party in contesting costs which have been submitted by the receiving part by preparing detailed Points of Dispute. 

Should settlement not be possible, we can assist either party in Detailed Assessment and can represent you at the relevant hearing.

If you require our assistance or wish to discuss your query, please do not hesitate to contact us on 01204 397302, or email us at info@arccosts.co.uk. 

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