In previous articles, we considered the duties of professionals and what constituted an act of negligence (Professional Negligence Part 1) and we looked at the law relating to acts of negligence and loss (Part 2).
In our final and possibly, the most important article regarding professional negligence, we tell you how to make a claim.
Can I afford to bring the claim?
Cost and time are often overlooked by clients in the early stages of investigating a claim. However, once a potential claim is established, dispute resolution can be both time-consuming and expensive and you must seriously consider the implications.
The first question to ask yourself is, do you have legal expenses insurance?
Legal fees may be insured and you do not realise, as it is often wrapped up in buildings, contents and motoring policies, so check. If you do have such cover, it is important that you place the insurer on notice as soon as possible.
If you do not have insurance cover, you should talk to your solicitor about other funding options. These can range from the standard hourly rate model, discounted rate conditional fee arrangements (CFA’s) or full litigation funding with after the event (“ATE”) insurance. The advantage of the latter is that you have no financial risk at all. The funder puts up the money to pursue your claim and the ATE policy will pay any adverse cost order against you, should you lose. The only downside is that the funder will take a percentage of any damages you may receive when you win. However, if you are not in a position to fund litigation yourself or are risk adverse, you could win a percentage of something rather than 100% of nothing!
Do not delay…
As with all claims, you are limited to a time period. For a professional negligence claim, you have 6 years from the date of the claimed negligence. This period may be extended where the act of negligence only becomes apparent at a later time.
In any event, you cannot make a claim beyond 15 years.
In short, do not put it off.
The legal free for all…
Dispute resolution is not a legal free for all. Parties must conduct themselves within the strict rules and procedures required by the Court. This complexity coupled with the equal complexity of the law relating to professional negligence claims, means you should retain the services of a solicitor to advise you.
Unless your 6 years is up, you should not simply issue Court proceedings.
The Courts have increasingly encouraged parties to attempt to resolve disputes without the need to issue Court proceedings. This is achieved by following a pre-action protocol. The hope being that parties will reach a settlement before proceedings need to be issued. The system frequently works that way. However, defendants with deep pockets or supported by equally deep-pocketed insurers, will often drag matters out with a view to exhausting the financial resources of any claimant. This is where litigation funding is attractive, as your pockets can be just as deep!
If the conduct of a party to litigation falls below the stand expected by the Court, they may be penalised in respect of costs. However generally, penalisation doesn’t occur until right at the end of the dispute.
Follow the protocol…
The professional negligence pre-action protocol sets down the procedure to follow before any proceedings are issued.
The procedure is again complex and relatively lengthy. However, its basic steps can be summarised as follows:
- A Preliminary Notice should be issued as soon as it is decided that there is a reasonable chance that a claim will be brought. This should be send to the ‘negligent’ party and they have 21 days in which to acknowledge the letter.
- Once the acknowledgment is received, the claimant should send a detailed Letter of Claim. The content of this letter is set down in the protocol and should be complied with fully. Any relevant supporting documents should be attached as well.
- The ‘negligent’ party should acknowledge the letter within 21 days and then has three months in which to undertake their own investigations.
- At the end of the three months, the ‘negligent’ party must send a Letter of Response, Letter of Settlement or both. The letter of response is usually in open correspondence and the letter of settlement usually without prejudice.
- If the claim is denied in its entirety and there is no settlement offer, the claimant can issue Court proceedings.
Throughout the pre-action protocol period and Court proceedings, the parties are expected to consider and actively undertake some form of Alternative Dispute Resolution (“ADR”). The form and implications of ADR will be dealt with in our next article.
The law and procedure regarding professional negligence is complex, with many potential pitfalls. If you think you have suffered a loss as a result of professional negligence, please contact Griffin Law on 01732 525923 or Neil on firstname.lastname@example.org. We would be delighted to have an informal chat to discuss your options.
Neil Kelley – Head of Litigation.
01732 525 923