There are advantages in pursuing a professional negligence claim. The main advantage is that there is usually insurance cover in place to cover the claim.
This may not, however, be available in all cases. In a recent matter, it was necessary for us to ascertain the identity of the insurers via the relevant regulatory body. The Defendants indicated that they were not claiming upon their insurance and had ceased to trade. We then contacted the regulatory authority to ascertain the identity of the insurers so that we could notify the claim to the relevant insurers. They then took over responsibility for the matter.
A disadvantage of insurance cover is that the insurers are usually somewhat difficult to deal with. In our experience, we would generally file proceedings or threaten to file proceedings before any reasonable offer of settlement is achieved. This is not universal for all cases, but this is the general position in our experience.
Professional negligence claims are governed by a mandatory professional negligence pre-action protocol process.
There are sanctions of costs if the provisions of this protocol are not complied with.
The first stage is to serve an initial notice upon the Defendant and ask for them to pass a copy of such notice onto their professional indemnity insurers.
The Preliminary Notice should contain the following information:
- The identity of the claimant and any other parties;
- A brief outline of the claimant’s grievance against the professional; and
- If possible, a general indication of the financial value of the potential claim.
The Preliminary Notice should be acknowledged within 21 days of receipt.
Letter of Claim:
The next stage is to serve a fully detailed Letter of Claim to comply with the detailed information requirements of the protocol. It will usually take several hours to prepare this letter.
When dealing with more complex cases, we would instruct Counsel to prepare the letter of claim.
The letter of claim should be acknowledged in writing within 21 days of receipt.
Letter of Response/Letter of Settlement:
The next stage would be for the insurers to provide a Letter of Response on behalf of the Defendants. They may also make an offer of settlement. The period for serving a Letter of Response/Letter of Settlement is three months from the date of the letter of acknowledgement of the Letter of Claim – unless an extension to this is agreed.
Accordingly, a professional negligence claim is not a quick fix.
The Letter of Response again is required to contain detailed information.
The pre-action protocol makes provision for the parties to reasonably exchange information and documents.
Appointment of Joint Experts:
It is also worth considering at this stage whether to appoint a jointly instructed expert. This is a device which reduces costs and contention where an independent expert will express his/her view about the issues to the parties. This is a much cheaper option than each party instructing their own expert.
Where reasonable, the Court allows joint experts. However, it is common practice for Defendants to insist upon each party having their own experts. This will materially increase the costs of the case. Our approach is to press for a joint expert whenever reasonably possible and at an early stage, to assist in the amicable resolution of the matter.
It is also common for the parties to consider pre-action mediation to try to resolve the matter without the need to file proceedings. Our experience of mediation is very good. Most of our mediations either settle at the mediation appointment itself or shortly afterwards. Mediation consists of an independent conciliator and a one-day meeting. The parties sit in different rooms, and the mediator moves from room to room attempting to narrow the issues and make offers to each side so that the dispute can be endeavoured to be settled. There may also be a joint session – which can be very useful in narrowing issues.
We try our utmost to settle a case on sensible terms before issuing proceedings. We use our skills with joint experts and mediation, to achieve this.
However, if the case is vigorously defended, we would need to file proceedings.
Funding of Claims:
There is the traditional method of a time charge basis. There are two additional ways of funding a professional negligence claim.
The first is when a client has the benefit of legal expense insurance. We are regularly appointed as non-panel solicitors to deal with the case by insurers. There is indeed a statutory right of an insured person, to choose their own solicitor once proceedings have been issued. Accordingly, if you have legal expense insurance, we will assist you in making a claim to insurers including where we think reasonably necessary supporting the application with Counsel’s advice. It is commonly difficult to secure cover under legal expense insurance policies. We have to work hard for our clients to obtain insurance cover for them. This may involve the use of formal complaints which we raise with insurers on behalf of our clients.
Alternatively, we will consider a no win no fee arrangement or a partial no win no fee arrangement in appropriate cases. Our policy is that we only take on cases on a no win no fee basis if Counsel is also willing to do so. Counsel will decide whether to take the case on such basis after having received the documentation and a summary narrative of events.
A no win, no fee arrangement is not retrospective, and we will charge our reasonable fees for endeavouring to locate Counsel willing to take on the case. Only once the agreement is signed up, is the case pursued upon such a basis.
A word of warning – a no win, no fee arrangement will not cover adverse fees, and accordingly, in relevant cases, it is necessary to effect after the event insurance cover in respect of adverse fees risks. We will where instructed apply for such cover on behalf of our clients, which again which will need to be supported with a favourable advice note from counsel.
Settlement of claims:
The usual procedure to exert pressure on the other side to settle a claim is to use Part 36 of the Civil Procedure Rules. This consists of a without prejudice offer in a prescribed form to the other party to settle the claim at a certain sum, exclusive of costs. If at trial that sum is not beaten then the other party will be liable for additional interest and costs and also in respect of Claimants a 10% additional compensation payment.
At the end of the day, the issue in the case is not necessarily who wins or loses but who succeeds with Part 36 offers since Defendants may make similar offers.
If a Part 36 which has been made by the Defendant is not beaten, this will almost certainly be a financial disaster. In such case the Claimant will be ordered to pay the Defendant’s legal costs incurred, 21 days after the making the relevant Part 36 offer.
It is for this reason that it is invariably necessary to run professional negligence claim with Counsel in order to protect the clients against adverse costs awards should Part 36 offers be made by the Defendant’s insurers – which is invariably the case.
If there is adverse insurance cover or legal expense insurance cover, then the making of any Part 36 offers by the Defendant must be notified to insurers, and the offer will in practice need to be accepted if Counsel is of the view that such an offer is reasonable and should be so accepted. Otherwise, the insurance cover will be pulled.
If you would like this firm to represent you with a professional negligence claim, then please contact us. We can arrange an initial meeting at a reasonable fixed price, and we do not charge for initial telephone calls.
Our fee time charge rates are set out on the fee page of our website, and these are competitive.
If you are at a distance from this office, then we can still reasonably represent you via telephone conferences, video conferences and email. We have indeed acted for some overseas clients where the case has to be run through this method.
Alternatively, you can meet at one of our offices which are located in Central London – 32 Bloomsbury Street, WC1 near to Tottenham Court Road Underground Station, Finchley N3 – near Finchley Central Underground Station and in Hatfield, Herts, AL9 – opposite the mainline railway station.
Please contact Lawrence Rodkin (Partner) on 0208 446 6223 or firstname.lastname@example.org.