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The Professional Negligence Pre-action Protocol

SPECIALIST PROFESSIONAL NEGLIGENCE SOLICITORS THAT WIN OVER 95% OF THEIR CLIENTS' CLAIMS

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.

When does the Pre-Action Protocol apply?

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.

What are the exceptions?

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..

How does it work?

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”.

The process

Preliminary Notice – the claimant should notify the defendant of his intentions to claim and should, where possible, include an estimate of its monetary value.
Letter of Acknowledgement – the defendant is obliged to acknowledge receipt of the letter within 21 days.
Letter of Claim – the Letter of Claim should provide a timeline of the circumstances leading to the dispute as well as a summary of the legal argument for damages. Documents, supporting evidence and the opinion of expert witnesses should also, where appropriate, be present with the letter.
Letter of Acknowledgement – the defendant should acknowledge receipt of the Letter of Claim within 21 days.
Letter of Response – the defendant should respond to the arguments and details of the Letter of Claim. This should be done within three months of the Letter of Acknowledgement. However, many defendants seek extensions to this period, often with success, and the delays caused by this are a common criticism of the Protocol. The defendant’s Letter of Response should make it clear whether liability is accepted or denied for the professional negligence claim. If liability is accepted, the defendant’s Letter of Response should be accompanied by a Letter of Settlement.
Court Proceedings – in the event that the defendant denies liability, the claimant may then commence litigation using the court system.

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Call our London office on 020 7822 4000 or our Brighton office on 01273 685 888. You can also contact us online.

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The Professional Negligence Pre-action Protocol experiences

Our client, a property developer was in the process of obtaining a property. The case involved two law firms that acted for the buyer & seller. After the transaction was complete, the client discovered that the seller had committed identity fraud and lost a considerable amount of money. Issues included breach of warranty of authority and breach of trust on the part of the solicitors who acted on behalf of the fraudster; the scope of the duty of care of the firm acting on behalf of our clients and whether the clients’ consequential loss of profit was recoverable at law. Our client decided to contact Jerome O’Sullivan and Healys’ Professional Negligence team in order to make a claim. Solicitors’ legal obligations in such circumstances are unclear and this matter may lead to clarification of the law in this regard. The team, led by Jerome O’Sullivan was able to successfully make a claim against the two firms for £1.5million.
Our client divorced with his wife and asked his former solicitors to take on his case. After completing procedures, he realised that the law firm had not protected his interests & assets. His wife dissipated all the assets leaving him very surprised and unsatisfied by the service that they had provided. Our client decided to contact Robert Johnson and Healys’ Professional Negligence team in order to make a claim. Robert Johnson and the Healys Family team acted extremely promptly to guarantee our client a success in his claim. They were able to successfully make a claim in the sum of £50,000 for failure in acting for our client’s best interests.
Our client’s claim arose out of the failings of her former solicitors to deal with her divorce. This included the dissipation of assets held by the husband in Hong Kong by way of freezing orders. The claim focused on conflicting evidence between the client and husbands solicitor. After lengthy negotiations with the other side, Robert Johnson was able to secure the client £650,000 in compensation.
Our client had a previous claim with another law firm in relation to his property being undervalued when sold. Unfortunately our client received poor advice from the previous law firm which resulted in him loosing the initial claim against the mortgagee and valuer. Robert Johnson was able to successfully make a claim against the previous law firm for loss in opportunity. After lengthy mediation with the other side, Robert was able to secure our client £800,000 in compensation.
Our client needed advice regarding an Under-Lease, and so they approached a firm about their issue. However, our client soon realised that the firm had given incorrect advice. He decided to contact Healys in order to make a claim against the law firm for failure to advise properly in relation to the purchase of an under-lease, the terms of that under lease, the status of the head lessee and rental payment terms. The team, led by Robert Johnson was able to successfully make a claim for £150,000 against the firm.
Our client decided to make a claim against their former solicitor in respect of the failure to advise properly with regard to rights of appointment of LPA Receivers leading to the adoption of the wrong strategy, appointment of receivers and subsequent losses. The team, led by Robert Johnson was able to successfully make a claim against the firm for £4 million in failing to advise on the risks of the strategy.
Our client instructed a firm of solicitors to deal with a claim in regard to his former employer. He was unfortunately unaware that the firm he instructed was in financial difficulty. Subsequently the firm went into liquidation. This lead to the solicitor dealing with the case to be negligent towards our client’s case. The team, led by Robert Johnson was able to successfully make a claim for £200,000 against the firm for failure in treating our clients claim with due care and diligence. Nick Evans, our employment law expert, also took part at the claim. We acted for the client under a CFA and since the case the firm in question has been dissolved.
The client’s wife was involved in an RTA which led to a claim on the client’s insurance. The insurer instructed a solicitor in the client’s name to commence proceedings to recover the insurer’s losses from the other party involved in the RTA. The solicitor negligently allowed a judgement in default to be entered on a counterclaim against our client. The client was unaware of the judgement until he applied for a mortgage some 15 months later. As a result our client suffered numerous heads of losses including increased mortgage costs and potential loss of earnings because of his job as a police officer. The case was led by Ben Parr-Ferris who made a claim against the solicitor for negligently allowing the judgement on his wife’s RTA insurance claim. The aim of Ben and his team was to safeguard the client’s career and make sure the judgement does not affect his progression. A number of negotiations were attempt with the insurer in order to revert the decision made by the solicitor as an insurer debt. However, both of them failed. Although the team were able to get assurances from our client’s employer that the judgement should not impact the client career in any way. The solicitor has since accepted liability and Ben Parr-Ferris was able to secure our client £30,000 in compensation.
While in the process of buying their new home, our clients contacted Property Survey Company in order to complete the required checks on their potential new property. The Property Survey Company completed all the checks and informed our clients that no defects were found. Unfortunately after purchasing the property our clients noticed a number of defects in the property and after getting a second opinion it was found that the original survey was incorrect. The team was able to successfully make claim against the property surveyor as they failed to provide our clients with the survey they asked for but also they failed to identify certain defects in the property. Robert and the team were able to secure £50,000 in compensation for our clients in an out of court settlement.
Our client had a significant property portfolio. She found out that a number of her properties had been sold without her knowledge under her ex-husbands name. The properties in question were equally owned by our client and her ex-husband, so no sale should have taken place without her knowledge. After instructing a number of expert witnesses that included a hand writing expert, it was found that the property was unlawfully sold. With this information, Robert Johnson and the Professional Negligence team at Healys was able to secure £750,000 in compensation after lengthy mediation with the other side.

The Professional Negligence Pre-action Protocol insights

The Professional Negligence Pre-action Protocol awards

Chambers & Partners 2018 - Band 4 – Professional Negligence – London, Robert Johnson - “Robert Johnson of Healys is "very thorough and commercially minded," according to sources. He focuses on advising claimants, and assists them with disputes involving a full range of professionals.”
Legal 500 2017 - Insurance: Professional Negligence – ranked: Tier 6 (London) - “Healys LLP handles claimant work for clients in disputes against a range of professions, including solicitors, valuers, architects, IFAs, construction and financial services professionals. The team is acting for a private individual in a claim against its former solicitors regarding alleged failure to deal with an employment claim, and represented Dreamvar (UK) in a claim against two firms of solicitors concerning a fraudulent property transaction. Dispute resolution head Robert Johnson is ‘bright, commercial and manages to master the detail while at the same time being focused entirely on the commercial aims of the client’. Jerome O’Sullivan is ‘tenacious and a strong negotiator’. David Bailey joined from Shakespeare Martineau LLP in 2016.”
Chambers & Partners 2017 - Band 4 – Professional Negligence – London, Robert Johnson - “Robert Johnson of Healys earns plaudits for his “wealth of experience and strong commercial views.” He is recognised for his experience representing claimants, and his recent activity includes advising on disputes related to property purchases, insurance contract terminations and fund misappropriation claims.”

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