The Professional Negligence Pre-Action Protocol (the Protocol) is designed to provide a framework for the early exchange of information between a professional negligence claimant and a professional negligence defendant.
Such protocols are required in the majority of professional negligence cases. For example, the Protocol applies when claiming against solicitors, barristers, lawyers, surveyors and tax advisers. It is also applicable in cases of alleged negligence and breach of contract or fiduciary duty (breach of trust).
In fact, first-instance following of the Protocol is considered compulsory in the majority of claims, and a court is likely to take an unfavourable view of any party who has chosen not to do so.
In cases involving claims against construction professionals, architects or engineers – the Construction and Engineering Disputes Pre-Action Protocol is the appropriate procedure.
Where a claimant may be time-barred from proceeding with a claim because of the time constraints involved in a pre-action protocol, the court allows them to make an application without the appropriate procedure having been followed..
The protocol came into force in 2001 in an attempt to reduce the need for court litigation. The Protocol aims to produce a dialogue between the parties which could help them come to mutual agreement regarding a settlement without the need for a formal hearing. The Courts’ Practice Direction on Pre-Action Conduct states that commencing formal “proceedings should usually be a step of last resort”.