Complying with the Professional Negligence Pre-Action Protocol

Why you must comply with the Pre-Action Protocol for Professional Negligence

When professionals, like solicitors, accountants, professional advisors, and surveyors, fail to perform to the standard expected, it can lead to serious problems for their clients. This failure, known as professional negligence, might result in financial loss, legal issues, or other significant damages.

Compliance with pre-action protocol for professional negligence is an important first step in professional negligence claims and recovering compensation caused by negligence. Failing to take advantage of pre-action strategies and non-compliance with the CPR Pre-Action Protocol for Professional Negligence can lead to additional difficulties, such as increased legal costs and delays, and applications before the Court.

It is therefore important that a strategic approach is adopted at the outset to try to narrow the issues in dispute which may help to recover the most compensation possible for professional negligence without Court proceedings.

The Pre-Action Protocol for Professional Negligence can significantly streamline the resolution of a negligence claim. It provides a clear framework for the parties to exchange necessary information and possibly reach a settlement without resorting to court proceedings. This approach saves time, reduces legal expenses, and minimises the stress associated with protracted litigation.

If a party fails to comply with the pre-action protocol for professional negligence it can lead to adverse consequences, particularly regarding legal costs. The Court may impose sanctions on parties who overlook the protocol’s guidelines, often resulting in additional financial burdens. Therefore, understanding and following the protocol is key to achieving a fair and efficient resolution in professional negligence claims.

Our expert professional negligence lawyers have an excellent and proven track record of delivering successful outcomes for clients with professional negligence claims often during the pre-action phase without having to start Court proceedings. Our professional negligence lawyers have a 98% success rate in negligence claims. Call us today on 0207 459 4037 for a Free Consultation.

What is Professional Negligence?

Professional negligence occurs when a professional, such as a solicitor, accountant, architect, or financial advisor, fails to perform their duties to the standard expected of a reasonably competent professional in their field. This failure must result in direct loss or damage. To be successful with your professional negligence claim, you will need to prove that you can meet the professional negligence “test” as follows:

  1. Duty of Care – a duty of care is typically evidenced by the written retainer or instruction letter between the professional and client but in the absence of a written agreement it may be implied by the parties’ conduct.
  2. Standard of Care – Establish the standard of care expected from the professional in their specific field. This involves comparing their actions to what a reasonable and competent professional would have done under similar circumstances.
  3. Breach of Duty – you will need to demonstrate that the service provided by the professional fell below the standards of a reasonably competent professional. The professional is judged by the standard of care of a reasonably competent person in the area in which they hold themselves out as having expertise.
  4. Causation/Loss – you will also have to prove that you have suffered loss caused by an error, mistake or bad service from the professional.
  5. Damages – Provide evidence of the actual losses or harm you experienced as a result of the professional’s breach. This can include financial losses, emotional distress, or other damages.

The relevant test is whether “but for” the professional’s error, mistake or bad service would the loss have still occurred anyway? A claim will not succeed if you would have acted in the same way regardless of whether the professional had been negligent or not. These elements will all form the factual and legal basis of any professional negligence claim and guide the application of the Pre-Action Protocol for Professional Negligence.

What is the Pre-Action Protocol for Professional Negligence?

If you have suffered professional negligence, it is crucial to understand the Civil Procedure Rules and the Pre-Action Protocol for Professional Negligence. The protocol outlines the essential steps the parties must take before going to court. It helps streamline professional negligence claims, making it clearer and more efficient for everyone involved and facilitating early exchange of information and settlement discussions.

There are several important aspects of the Pre-Action Protocol for Professional Negligence which you must consider namely:

  1. Preliminary Notice (Para 3.1, 3.2): The protocol requires that a claimant should notify the professional in writing as soon as possible if they believe there is a reasonable ground for a claim. This Preliminary Notice should briefly outline the claim and the parties involved.
  2. Letter of Claim (Para 4.1, 4.3, 4.4): The claimant must send a detailed Letter of Claim to the professional, explaining the basis of the claim. This should include the relevant facts, what the professional did wrong, how this caused harm, and an outline of the financial loss suffered.
  3. Professional’s Acknowledgement and Response (Para 5.1, 5.2, 5.6): The professional should acknowledge the Letter of Claim within 21 days of receipt. They then have three months to investigate the claim and respond with either a Letter of Response (admitting or denying the claim) and/or a Letter of Settlement (to settle the claim).
  4. Disclosure of Documents (Para 6.1, 6.3): Both parties should disclose key documents relevant to the claim. This is meant to facilitate a clear understanding of the issues and to encourage settlement where possible.
  5. Experts’ Involvement (Para 7.1, 7.2, 7.3): If necessary, especially in cases involving technical issues, the protocol suggests appointing independent experts. The expert’s role is to provide an objective opinion on specific aspects of the professional’s conduct.
  6. Alternative Dispute Resolution (ADR) (Para 12.1, 12.2, 12.3): The protocol advocates for the use of ADR methods, such as mediation, arbitration, or early neutral evaluation, to resolve disputes. It requires parties to consider ADR and may necessitate evidence of having considered ADR if the case goes to court. Our professional negligence lawyers are also strong advocates of mediation and several of our lawyers are also qualified mediators which provides clients with a unique advantage when our lawyers are negotiating the best outcome for you.
  7. Costs Sanctions for Non-Compliance (Para 16): The court can impose costs sanctions for failing to comply with the protocol. This includes situations where a party unreasonably refuses to use ADR or does not respond to a communication from the other party.

Complying with the pre-action protocol can provide valuable insight into the parties’ positions, narrow the issues in dispute, focus the parties’ minds and facilitate amicable discussion around settlement. However, if a resolution is not achieved it can also be useful to show the pre-action correspondence to the Court to show that you gave the negligent professional every opportunity to resolve the claim without Court proceedings.

Exceptions for Non-Compliance with the Pre-Action Protocol for Professional Negligence

While the Pre-Action Protocol for Professional Negligence is designed to streamline the process of resolving professional negligence claims, there are some exceptions and considerations where it is not possible to comply with the protocol such as:

  1. Limitation Period Concerns (Para 4.1): The pre-action protocol for professional negligence cannot change the statutory time limits for starting court proceedings. If a claim is close to the limitation deadline (typically 6 years from the date of the breach/acts of negligence), the claimant may need to issue proceedings before complying with the protocol to avoid the claim becoming time-barred. In such cases, the parties can agree to a standstill agreement to extend the period in which a limitation defence will not be pursued, or the claimant may start proceedings and invite the professional to agree to a stay to allow for protocol compliance​​.
  2. Stay of Proceedings (Para 4.1):If a professional negligence court claim is started before completing the protocol steps due to limitation concerns, the claimant can request, and the parties can agree, that proceedings be stayed to enable the protocol procedures to be followed. This is particularly relevant when the limitation period is about to expire, but the parties still wish to adhere to the protocol process​​.
  3. Reasonable Flexibility (Para 3.2): The protocol requires the parties to a legal dispute to act reasonably. This suggests a degree of flexibility, where parties should comply with the spirit of the protocol by acting in a manner that promotes early resolution​​.

These exceptions indicate that while complying with the protocol is important, the courts recognise limited circumstances where immediate compliance may not be possible or practical, especially regarding limitation deadlines.

Winning approach to claims for Professional Negligence

Our no win no fee professional negligence lawyers have dealt with negligence claims ranging from £50,000 to claims of up to £15m. We pride ourselves on our client-centric and results-driven approach, tailoring our litigation strategies and funding solutions to meet the unique commercial needs of each client.

Our lawyers are recognised among the best lawyers in England & Wales, and have regularly been asked and featured to write authoritative articles in the Financial Times, Law Society and LexisNexis and have been quoted in City AM, the New Law Journal, Law Society Gazette and Litigation Futures.

Our specialist professional negligence team is Partner-led to provide straightforward, honest and strategic advice. We also have a strong legal network of solicitors, barristers and forensic accountant experts to call upon and advise you throughout to ensure you get the best result.

Our unique approach to professional negligence claims means that we will:

  • Arrange a Free Consultation with you & a qualified lawyer to discuss your professional negligence claim
  • Arrange a WhatsApp group with you & your legal team
  • Investigate the merits of your claim for professional negligence & devise a strategy for success at the outset
  • Work with our in-house accountants to report all losses
  • Send documents easily through our secure client portal, Go Transfer
  • Advise you on any judgments & tactics that have proved successful in other negligence cases
  • Assess the amount you may be able to recover from the negligent professional
  • 24/7 chat feature with a qualified lawyer
  • Fixed fees and ‘no win no fee’ funding arrangements so that you have peace of mind
  • Work hard to recover adequate compensation

Our lawyers offer regulated, independent & confidential legal advice and are dedicated members of the Professional Negligence Lawyers Association, the London Solicitors’ Litigation Association, the Association of Cost Lawyers, the Insolvency Lawyers Association and the Commercial Litigation Association.

Mediation in Negligence Claims

Alternative dispute resolution, where suitable, provides many advantages for parties in legal disputes. Our lawyers are strong advocates for mediation, which can often lead to favourable settlements in professional negligence claims.

Several of our lawyers are trained mediators and expert negotiators who are registered members of the Chartered Institute of Arbitrators (CIArb) and the International Mediation Institute. Our expertise in mediation gives our lawyers a significant and unique advantage when navigating settlement discussions on your behalf.

Free Consultation with our Expert Professional Negligence Lawyers

Whether you are an individual or a business, our professional negligence lawyers provide exceptional legal services to get you the compensation you deserve quickly and cost-effectively: this is our promise. If you want to find out more about our no win no fee, and flexible funding options, you can find out more on our Funding page.

To book a Free Consultation with our expert no win no fee professional negligence solicitors, you can call us on 0207 459 4037 or you can use our booking form below.


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