PROFESSIONAL INDEMNITY CLAIMS & CIRCUMSTANCES GUIDE

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1 PROFESSIONAL INDEMNITY CLAIMS & CIRCUMSTANCES GUIDE 1

2 TABLE OF CONTENTS THE TIFICATION PROCESS... 3 GENERAL CLAIM CONDITIONS... 4 WARRANTIES/CONDITION PRECEDENT... 4 TIFYING A CLAIM OR CIRCUMSTANCE... 4 CLAIMS UNDER THE PRE ACTION PROTOCOL... 6 PROFESSIONAL NEGLIGENCE PRE ACTION PROTOCOL TIMESCALES... 7 PRELIMINARY TICE OF CLAIM... 7 PRE ACTION PROTOCOL LETTER OF CLAIM... 7 LETTER OF RESPONSE... 7 LETTER OF SETTLEMENT... 8 ALTERNATIVE DISPUTE RESOLUTION... 8 CONSTRUCTION & ENGINEERING PRE ACTION PROTOCOL TIMESCALES... 9 LETTER OF OBJECTION... 9 LETTER OF RESPONSE... 9 PRE ACTION MEETING RISK MANAGEMENT CONTACT NTEGRITY APPENDIX PROFESSIONAL INDEMNITY TIFICATION FORM PROFESSIONAL NEGLIGENCE PRE ACTION PROTOCOL THE PROTOCOL B1. PRELIMINARY TICE B2. LETTER OF CLAIM B3.THE LETTER OF ACKWLEDGMENT B5. LETTER OF RESPONSE AND LETTER OF SETTLEMENT B5.2 THE LETTER OF RESPONSE B5.4 THE LETTER OF SETTLEMENT B5.5 EFFECT OF LETTER OF RESPONSE AND/OR LETTER OF SETTLEMENT B6. ALTERNATIVE DISPUTE RESOLUTION B7.EXPERTS C. GUIDANCE TES PRE ACTION PROTOCOL FOR CONSTRUCTION AND ENGINEERING DISPUTES INTRODUCTION EXCEPTIONS OBJECTIVES OVERVIEW OF THE PROTOCOL THE LETTER OF CLAIM THE DEFENDANT S RESPONSE PRE ACTION MEETING LIMITATION OF ACTION RISK MANAGEMENT CHECKLIST

3 The Notification Process Your Professional Indemnity insurance policy contains many conditions. When it comes to claims, you need to notify your Insurers of any claims or circumstances that may result in a claim against you, in a timescale that is usually set out in your policy terms and conditions. It is usually easy to identify a claim as there will be a clear indication of intent from a Claimant to sue you. This is often an allegation of negligence against your business, and will usually indicate a potential, or actual loss, as a result. It can be more difficult to identify a circumstance. Professional indemnity policy wordings typically require the notification of circumstances likely or that may give rise to a claim. You will need to review your policy wording to find out which circumstances need to be notified and within what time period. Does your policy require notification of circumstances that may or those that are likely to give rise to a claim? Use of the words may give rise to is generally accepted as being any issue with more than a 20% risk of giving rise to a claim. This increases the notification obligation, and generally results in more matters needing to be advised to Insurers but can sometimes help in identifying problems earlier. Likely is accepted as being an issue with more than a 50% chance of giving rise to a claim. This is less onerous for you as fewer matters will be notified. Be aware of any change your notification obligation If you are considering a change of Insurer at renewal, it is important to review the notification obligations of each policy wording carefully as there is no market wide approach to clauses. Moving from a likely to a may give rise to wording, with an increased notification obligation, may need planning to adjust your reporting processes. Circumstances may include: Any intimation by a client, former client or other third party, whether expressed or implied, of an intention to claim against you, Any criticism of your performance where it may give rise to a financial loss, Your awareness of a service shortcoming, an act or omission which may result in your client feeling that you have failed to meet the standards required, even if your client is unaware of the shortcoming. You must notify Insurers within the timescale stated in the policy; otherwise the claim may not be covered. Ntegrity strongly recommend that you ensure all notifications are made within a 14 day period of discovery. You should notify all issues that you become aware of, however small (unless you have a Small Claims Handling clause) and whether you consider them to be justified matters or not. Your Insurers may be able to refuse to meet claims notified late, particularly during highly competitive insurance market conditions and periods of financial hardship. As your insurance partner, NTEGRITY are here to guide and support you. If you are in any doubt as to whether a matter should be notified to Insurers, or what constitutes a claim/circumstance, we strongly recommend that you contact your claims contact for advice. 3

4 General Claim Conditions To protect your interests and those of your Insurers: You should avoid disclosing Insurers involvement in any communications with the Claimant, as this often encourages a Claimant to pursue a claim more vigorously; You should not discuss the claim or circumstance with the Claimant without prior approval from the Insurer; You must not make any admission of liability or take any action which may prejudice the Insurers position. Warranties/Condition Precedent A warranty is a superior condition of the policy that must be strictly complied with. A breach of warranty can result in immediate termination of the cover potentially from inception as though the contract had not been arranged. Some conditions of the policy may be described as a condition precedent and these can have the same impact as a warranty. Warranties and condition precedents must be complied with at all times if the cover under the policy is to remain effective when you need it. Any claim that might arise, where a breach of the warranty or condition precedent has arisen, is potentially at risk of not being covered. Notifying a Claim or Circumstance The process of defending a claim for professional negligence can be complex. The issues can be involved and the costs both in time and resource that may be incurred in investigating and gathering evidence in support of the defence of the claim, are likely to be high. Unlike many other forms of claim, a professional negligence claim is often more than just a compensation claim it can affect professional reputation. A claim of this nature needs to be dealt with sensitively, professionally and knowledgeably. In order to present your claim/circumstance to Insurers in the best possible way, you need to provide full details at the outset to Insurers to enable them to fully assess the matter. This would include: The name of the potential claimant or client involved. The nature of the potential claim and the circumstances that have led to it. An estimate of the monetary value of the claim (the quantum ). The date upon which you first became aware of circumstances that may give rise to a claim. Confirmation of whether a formal claim has been made by the client. Details of any investigations that you have made/propose to make. Your opinion on whether your firm could be liable for the claim. Confirmation of whether any outstanding fees are owed. Insurers often like to see a copy of your Terms of Engagement to consider any limitation of liability clauses that might apply, together with any documentary supporting evidence that relates to the claim, such as copies of any correspondence that you may have received from the Claimant/client which has alerted you to the situation. Once a claim has been noted by the insurers, they will ask for your involvement, on an on going basis: You are the expert on the matter having carried out the work involved and are therefore best placed to assist Insurers with their enquiries. 4

5 By staying in the background, Insurers strengthen your position. They will ask you to draft a response on your own letterhead often a strong denial of liability in the early stages aimed at pre4venting the claim from progressing further. Claimants will often take the fact that you have notified your Insurers as a sign of vulnerability or even an admission of liability. This does not always achieve the best settlement results. We live in an increasingly litigious society. Most clients will expect you to have Professional Indemnity Insurance but Insurers ask you not to disclose to the client that you ve notified a claim. When a potential Claimant realises that Insurers are involved, they often view this as an open cheque book and pursue a claim more vigorously knowing that they are far more likely to get some form of payment rather than Insurers allowing it to go to court and running up excessive costs. 5

6 Claims under the Pre Action Protocol In order to avoid unnecessary litigation, most claims will be considered in conjunction with the Woolf reforms and the Civil Procedure Rules. The Professional Negligence Pre Action Protocol (Appendix 2) will apply to all professionals other than Architects, Engineers and Quality Surveyors who will need to adhere to the Construction & Engineering Dispute Protocol. (Appendix 3) The protocol has been kept simple for ease of use and general acceptability and the standards expected from the protocol are what the courts will require as a reasonable approach. The Civil Procedure Rules set out a useful summary of the aims of the Pre Action Protocol: The claimant and the defendant have provided sufficient information for each party to know the nature of the other's case. Each party has had an opportunity to consider the other's case, and to accept or reject all or any part of the case made against him at the earliest possible stage. Pre action contact between the parties leads to earlier, relevant investigation and exchange of information by the parties. The parties have met formally on at least one occasion with a view to defining and agreeing the issues between them and exploring possible ways by which the claim may be resolved. The parties are in a position where they may be able to settle cases early and fairly without going to court. Proceedings will be conducted efficiently if litigation does become necessary. The Pre Action Protocol imposes tight timescales and any departure from the guidelines may lead to penalties. In the event that you receive a Pre Action Protocol Letter of Claim, please pass this to Ntegrity immediately so that we ensure your Insurers receive the letter in a timely manner, ensuring that you comply with your policy terms and conditions. 6

7 Professional Negligence Pre Action Protocol Timescales Preliminary Notice of Claim In the early stage of the identification of a circumstance or claim where the Claimant has not yet written to you, you should encourage the Claimant to put in writing the nature of their grievance including: The identity of the Claimant and any other parties A brief outline of their grievance An estimate of the financial value of the potential claim This document is considered a preliminary notice and forms the first stage of the Pre Action Protocol. You are required to acknowledge this letter within 21 days. The letter from the Claimant must be submitted to NTEGRITY, who will in turn notify Insurers immediately. All parties can then assess whether the situation can be resolved prior to the issue of a formal Letter of Claim. Pre Action Protocol Letter of Claim If a Claimant is satisfied that he has grounds for making a claim against you, you will receive a formal Letter of Claim Pre Action Protocol Letter, most likely from their legal representative. The letter should include: Identification of the parties involved in the dispute. A clear chronological summary of the facts on which the claim is based. The specific allegations of negligence. An explanation as to how the alleged error has caused the loss claimed. An estimate of the financial loss and how this has been calculated. Clarify whether an expert has been appointed. Request that you pass a copy of the letter to your Insurers. It should be an open letter, which can be used as evidence in court, rather than without prejudice. You will be in breach of your policy terms and conditions if you do not pass this letter to your Insurers immediately. The letter must be acknowledged within 21 days and providing this timescale is complied with, you/your Insurers will then have 3 months, from the date of the acknowledgement (which is accepted by the Courts as being a reasonable timescale) to investigate the allegations and provide one of the following; A Letter of Response An open letter either admitting the claim, admitting part of the claim or denying the whole claim A Letter of Settlement A without prejudice letter which puts forward a proposal of settlement (A without prejudice letter is a document unintended for court, that doesn t admit liability). A request for an extension of time Letter of Response The Letter of Response will normally be an open letter and not without prejudice. It should be a reasoned answer to the Claimant s allegations; If the claim is admitted you/your Insurers should say so in clear terms. 7

8 If only part of the claim is admitted you/your Insurers should make clear which parts of the claim are admitted and which are denied. If the claim is denied in whole or part, the Letter of Response should include specific comments on the allegations against you and, if the Claimant s version of events is disputed, you/your Insurers should provide your version of events. If you are unable to admit or deny the claim, you/your Insurers should identify any further information which is required. If you dispute the estimate of the Claimant s financial loss, the Letter of Response should set out you/your Insurers estimate. If an estimate cannot be provided, you should explain why and should state when you will be in a position to provide an estimate. This information should be sent to the Claimant as soon as reasonably possible. Where additional documents are relied upon, copies should be provided. The Letter of Response is not intended to have the same status as a Defence. However if that the matter later goes to court and the information presented to the Court differs from that contained within the Letter of Response, the Court may impose penalties. Letter of Settlement The Letter of Settlement should also be an open letter and not without prejudice, and should only be sent if you intend to make an offer of settlement. The letter should; Set out you/your Insurers views to date on the claim. If the Letter of Settlement is not being sent in conjunction with a Letter of Response, identify those issues which you believe are likely to remain in dispute and those which are not Make a settlement proposal or identify further information that is required before you/your Insurers can formulate a settlement Where additional documents are relied upon, copies should be provided. If the Letter of Response denies liability entirely and there is no Letter of Settlement, the Claimant is then entitled to commence proceedings. A maximum of 6 months from the date of acknowledgement of the Letter of Claim is allowed to resolve the matter, before the Claimant is entitled to commence proceedings Alternative Dispute Resolution The parties can agree at any stage to take the dispute to Alternative Dispute Resolution (ADR), often including Mediation. If you receive a request for the use of ADR, you will have a maximum of 14 days during which to agree or object. Courts often look favourably on parties that have tried to resolve a matter themselves through ADR. As your chosen insurance partner, Ntegrity will be on hand at all times to support and guide you through this process. 8

9 Construction & Engineering Pre Action Protocol Timescales Prior to commencing proceedings, the claimant or his solicitor should submit to you a copy of a Letter of Claim which must contain the following information: The claimant's full name and address. The full name and address of each proposed defendant. A clear summary of the facts on which each claim is based. The basis for each claim, identifying the principal contractual terms and statutory provisions relied on. The nature of the relief claimed. If damages are claimed, a breakdown showing how the damages have been quantified; if a sum is claimed under contract, how it has been calculated; if an extension of time is claimed, the period claimed. Where a claim has been made previously and rejected by a defendant, and the claimant is able to identify the reason(s) for such rejection, the claimant's grounds of belief as to why the claim was wrongly rejected. The names of any experts already instructed by the claimant on whose evidence he intends to rely, identifying the issues to which that evidence will be directed. You must acknowledge receipt of the Letter of Claim in writing within 14 calendar days. If you do not acknowledge this letter within 14 days, the claimant will be entitled to commence proceedings without further compliance with the Protocol and the Court may impose sanctions or penalties upon you. You must pass this letter to your Insurers immediately or you will be in breach of your policy terms and conditions. Letter of Objection You or your Insurers can object to all or any part of the Claimant's claim on the grounds that: The court lacks jurisdiction, The matter should be referred to arbitration, or The person/firm named in the letter of claim is not you/your firm. Your written objection should be raised within 28 days after receipt of the Letter of Claim. Your Letter of Objection will need to specify the parts of the claim to which the objection relates, the reasons why you object, and, where appropriate, should identify the correct party (if known). You/your Insurers are not required to send a Letter of Response (see below) in relation to the areas covered by your Letter of Objection. If you then withdraw your objection before the Claimant commences proceedings, you should restart the Protocol process for those parts of the claim to which you now withdraw your objection. The date of your notice of withdrawal becomes the new assumed date for receipt of the Letter of Claim. Letter of Response Within 28 days from the date of receipt of the Letter of Claim, or such other period as the parties may reasonably agree (the agreed response period up to a maximum of 3 months), you/your Insurers need to send a letter of response to the claimant which should contain the following information: The facts set out in the Letter of Claim which are agreed or not agreed, and if not agreed, the basis of the disagreement. Which claims are accepted and which are rejected, and if rejected, the basis of the rejection. 9

10 If a claim is accepted in whole or in part, whether the damages, sums or extensions of time claimed are accepted or rejected, and if rejected, the basis of the rejection. If contributory negligence is alleged against the claimant, a summary of the facts relied on. Whether the defendant intends to make a counterclaim, and if so, giving the information which is required to be given in a Letter of Claim. The names of any experts already instructed on whose evidence it is intended to rely and the issues on which they will be giving their opinion. If no response is received by the claimant within the agreed response period, the Claimant shall be entitled to commence legal proceedings. The claimant must provide a response to any counterclaim within 28 days (or the agreed response period). Pre Action Meeting Within 28 days after receipt by the claimant of your Letter of Response, or (if the claimant intends to respond to the counterclaim) after receipt by you of the claimant's letter of response to the counterclaim, the parties should normally meet. The aim of the meeting is for the parties to agree what are the main issues in the case, to identify the root cause of disagreement in respect of each issue, and to consider; how the issues might be resolved without going to court, or if litigation is unavoidable, how to proceed in accordance with the Civil Procedure Rules. It may be necessary to hold more than one meeting. The Protocol does not prescribe in detail how the meetings should be conducted. The court will normally expect that those attending will include; The interested parties i.e. individuals, or representative of each corporate body who have authority to settle or recommend settlement of the dispute. A legal representative of each party (if one has been instructed). A representative of the insurer (who may be its legal representative); and If a claim is made or defended on behalf of some other party, the other party and/or his legal representatives should attend. For each agreed issue, or the dispute as a whole, the parties should consider whether alternative dispute resolution would be more suitable than litigation, and agree which form to adopt. No party can, or should be forced to, mediate or enter into any form of ADR. If the parties cannot agree on to resolve the dispute other than by litigation, the Protocol requires that they should use their best endeavours to agree if there is any area where expert evidence is likely to be required, how the relevant issues are to be defined and how expert evidence is to be dealt with including whether a joint expert might be appointed, and if so, who that should be. As far as is practicable: The extent of disclosure of documents with a view to saving costs; and The conduct of the litigation with the aim of minimising cost and delay Any party who attended any pre action meeting shall be at liberty and may be required to disclose to the court the following; 10

11 1. That the meeting took place, when and who attended. 2. The identity of any party who refused to attend, and the grounds for such refusal. 3. If the meeting did not take place, why not; and, 4. Any agreements concluded between the parties. 5. Whether alternative means of resolving the dispute were considered or agreed. 11

12 Risk Management Professionals often fear that claims may arise due to a lack of technical knowledge within the firm, and some claims do arise from this area. In practice, the vast majority of claims arise from operational issues, a failure of internal processes or systems rather than a technical error. These can still give rise to large claims. It is therefore important for professionals to focus upon achieving or improving safeguards and procedures to ensure that the firm have a uniformity of approach, ensuring that best practise is identified and followed by the whole organisation. Risk management needs to be understood and implemented throughout the organisation, many firms appoint a risk management partner to oversee this. Dealing with a claim could have the following cost implications for your firm; A rise in on your premium and excess at renewal. Greater Insurer scrutiny and in some cases, difficulties obtaining insurance cover. Wasted time in dealing with investigations and correspondence. Potential damage to your reputation/lost clients. Loss of profit for the firm. Loss of staff confidence. NTEGRITY are experts at identifying exposure and working to eliminate, reduce or control risks. In order to assist you we have prepared an aide memoir (See Appendix 4) to assist you in identifying areas of weakness and protect your firm. As a Client of Ntegrity we can help you prepare for the unthinkable. 12

13 Contact Ntegrity Direct Dial Mobile Office Tel Fax Tara Price Director of Claims Ntegrity Tara Price is a liability claims specialist. She has spent her 23 year career working both for insurers and brokers. Tara began her career with General Accident and then became the Professional Indemnity Regional Claims Manager for Chartwell Underwriting. In 2000, she switched to broking, joining Alexander Forbes Professions as Executive Claims Director before joining Ntegrity in Tara has a well developed understanding of compliance matters. Specialist insurance knowledge Professional Indemnity insurance and associated insurances for professional clients. Clients advised include accountants, associations, architects, engineers, insurance intermediaries, financial advisers, regulators, solicitors, surveyors and estate agents Vallon House, Vantage Court Office Park, Old Gloucester Road, Bristol, BS16 1GW Telephone Fax enquiries@ntegrity.co.uk Web 13

14 APPENDIX A PPENDIX1 A PPENDIX2 A PPENDIX3 APPENDIX4 N OTIFICATION F ORM P ROFESSIONAL N EGLIGENCE P RE A CTION P ROTOCOL P RE A CTION P ROTOCOL FOR C ONSTRUCTION & E NGINEERING D ISPUTES RISK MANAGEMENT CHECKLIST 14

15 A PPENDIX1 N OTIFICATION F ORM NTEGRITY INSURANCE SOLUTIONS PROFESSIONAL INDEMNITY TIFICATION FORM PLEASE PROVIDE THE FOLLOWING DETAILS Insured: Policy Reference: Your reference NTEGRITY Claim Advisor: Notification Date: Date of Loss: Claim/Claimant: Claimant s Representative: Cause of Claim: Particulars of Notification: Liability: Potential Quantum: Applicable Excess: Staff Involved 15

16 A PPENDIX1 N OTIFICATION F ORM Office location Insured s point of Contact Current Position Any other details relevant to your notification. (Please continue on another sheet if necessary.) SIGNED BY POSITION IN COMPANY Date Please attach any additional supporting documentary evidence to your form. If you require any assistance completing this form, please contact Ntegrity. 16

17 A PPENDIX 2 PROFESSIONAL NEGLIGENCE PRE ACTION PROTOCOL Professional Negligence Pre Action Protocol A1. This protocol is designed to apply when a Claimant wishes to claim against a professional (other than construction professionals and healthcare providers) as a result of that professional's alleged negligence or equivalent breach of contract or breach of fiduciary duty. Although these claims will be the usual situation in which the protocol will be used, there may be other claims for which the protocol could be appropriate. For a more detailed explanation of the scope of the protocol see Guidance Note C2. A2. The aim of this protocol is to establish a framework in which there is an early exchange of information so that the claim can be fully investigated and, if possible, resolved without the need for litigation. This includes: (a) ensuring that the parties are on an equal footing (b) saving expense (c) dealing with the dispute in ways which are proportionate: (i) to the amount of money involved (ii) to the importance of the case (iii) to the complexity of the issues (iv) to the financial position of each party (d) ensuring that it is dealt with expeditiously and fairly. A3. This protocol is not intended to replace other forms of pre action dispute resolution (such as internal complaints procedures, the Surveyors and Valuers Arbitration Scheme, etc.). Where such procedures are available, parties are encouraged to consider whether they should be used. If, however, these other procedures are used and fail to resolve the dispute, the protocol should be used before litigation is started, adapting it where appropriate. See also Guidance Note C3. A4. The Courts will be able to treat the standards set in this protocol as the normal reasonable approach. If litigation is started, it will be for the court to decide whether sanctions should be imposed as a result of substantial noncompliance with a protocol. Guidance on the courts' likely approach is given in the Protocols Practice Direction. The Court is likely to disregard minor departures from this protocol and so should the parties as between themselves. A5. Both in operating the timetable and in requesting and providing information during the protocol period, the parties are expected to act reasonably, in line with the Court's expectations of them. See also Guidance Note C1.2. The Protocol B1. Preliminary Notice (See also Guidance Note C3.1) B1.1 As soon as the Claimant decides there is a reasonable chance that he will bring a claim against a professional, the Claimant is encouraged to notify the professional in writing. B1.2 This letter should contain the following information: (a) the identity of the Claimant and any other parties (b) a brief outline of the Claimant's grievance against the professional (c) if possible, a general indication of the financial value of the potential claim B1.3 17

18 A PPENDIX 2 PROFESSIONAL NEGLIGENCE PRE ACTION PROTOCOL This letter should be addressed to the professional and should ask the professional to inform his professional indemnity insurers, if any, immediately. B1.4 The professional should acknowledge receipt of the Claimant's letter within 21 days of receiving it. Other than this acknowledgement, the protocol places no obligation upon either party to take any further action. B2. Letter of Claim B2.1 As soon as the Claimant decides there are grounds for a claim against the professional, the Claimant should write a detailed Letter of Claim to the professional. B2.2 The Letter of Claim will normally be an open letter (as opposed to being without prejudice ) and should include the following (a) The identity of any other parties involved in the dispute or a related dispute. (b) A clear chronological summary (including key dates) of the facts on which the claim is based. Key documents should be identified, copied and enclosed. (c) The allegations against the professional. What has he done wrong? What has he failed to do? (d) An explanation of how the alleged error has caused the loss claimed. (e) An estimate of the financial loss suffered by the Claimant and how it is calculated. Supporting documents should be identified, copied and enclosed. If details of the financial loss cannot be supplied, the Claimant should explain why, and should state when, he will be in a position to provide the details. This information should be sent to the professional as soon as reasonably possible. If the Claimant is seeking some form of non financial redress, this should be made clear. (f) Confirmation whether or not an expert has been appointed. If so, providing the identity and discipline of the expert, together with the date upon which the expert was appointed. (g) A request that a copy of the Letter of Claim be forwarded immediately to the professional's insurers, if any. B2.3 The Letter of Claim is not intended to have the same formal status as a Statement of Case. If, however, the Letter of Claim differs materially from the Statement of Case in subsequent proceedings, the Court may decide, in its discretion, to impose sanctions. B2.4 If the Claimant has sent other Letters of Claim (or equivalent) to any other party in relation to this dispute or related dispute, those letters should be copied to the professional. (If the Claimant is claiming against someone else to whom this protocol does not apply, please see Guidance Note C4.) B3.The Letter of Acknowledgment B3.1 The professional should acknowledge receipt of the Letter of Claim within 21 days of receiving it. B4.Investigations B4.1 The professional will have three months from the date of the Letter of Acknowledgment to investigate. B4.2 If the professional is in difficulty in complying with the three month time period, the problem should be explained to the Claimant as soon as possible. The professional should explain what is being done to resolve the problem and when the professional expects to complete the investigations. The Claimant should agree to any reasonable request for an extension of the three month period. 18

19 A PPENDIX 2 PROFESSIONAL NEGLIGENCE PRE ACTION PROTOCOL B4.3 The parties should supply promptly, at this stage and throughout, whatever relevant information or documentation is reasonably requested. (Please see Guidance Note C5). (If the professional intends to claim against someone who is not currently a party to the dispute, please see Guidance Note C4.) B5. Letter of Response and Letter of Settlement B5.1 As soon as the professional has completed his investigations, the professional should send to the Claimant: (a) a Letter of Response, or (b) a Letter of Settlement; or (c) both. The Letters of Response and Settlement can be contained within a single letter. B5.2 The Letter of Response The Letter of Response will normally be an open letter (as opposed to being without prejudice ) and should be a reasoned answer to the Claimant's allegations: (a) if the claim is admitted the professional should say so in clear terms. (b) if only part of the claim is admitted the professional should make clear which parts of the claim are admitted and which are denied. (c) if the claim is denied in whole or in part, the Letter of Response should include specific comments on the allegations against the professional and, if the Claimant's version of events is disputed, the professional should provide his version of events. (d) if the professional is unable to admit or deny the claim, the professional should identify any further information which is required. (e) if the professional disputes the estimate of the Claimant's financial loss, the Letter of Response should set out the professional's estimate. If an estimate cannot be provided, the professional should explain why and should state when he will be in a position to provide an estimate. This information should be sent to the Claimant as soon as reasonably possible. (f) where additional documents are relied upon, copies should be provided. B5.3 The Letter of Response is not intended to have the same formal status as a Defence. If, however, the Letter of Response differs materially from the Defence in subsequent proceedings, the Court may decide, in its discretion, to impose sanctions. B5.4 The Letter of Settlement The Letter of Settlement will normally be a without prejudice letter and should be sent if the professional intends to make proposals for settlement. It should: (a) set out the professional's views to date on the claim identifying those issues which the professional believes are likely to remain in dispute and those which are not. (The Letter of Settlement does not need to include this information if the professional has sent a Letter of Response.) (b) make a settlement proposal or identify any further information which is required before the professional can formulate its proposals. (c) where additional documents are relied upon, copies should be provided. 19

20 A PPENDIX 2 PROFESSIONAL NEGLIGENCE PRE ACTION PROTOCOL B5.5 Effect of Letter of Response and/or Letter of Settlement If the Letter of Response denies the claim in its entirety and there is no Letter of Settlement, it is open to the Claimant to commence proceedings. B5.6 In any other circumstance, the professional and the Claimant should commence negotiations with the aim of concluding those negotiations within 6 months of the date of the Letter of Acknowledgment (T from the date of the Letter of Response). B5.7 If the claim cannot be resolved within this period: (a) the parties should agree within 14 days of the end of the period whether the period should be extended and, if so, by how long. (b) the parties should seek to identify those issues which are still in dispute and those which can be agreed. (c) if an extension of time is not agreed it will then be open to the Claimant to commence proceedings. B6. Alternative Dispute Resolution B6.1 The parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt. Both the Claimant and professional may be required by the Court to provide evidence that alternative means of resolving their dispute were considered. The Courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored. Parties are warned that if the protocol is not followed (including this paragraph) then the Court must have regard to such conduct when determining costs. B6.2 It is not practicable in this protocol to address in detail how the parties might decide which method to adopt to resolve their particular dispute. However, summarised below are some of the options for resolving disputes without litigation: Discussion and negotiation. Early neutral evaluation by an independent third party (for example, a lawyer experienced in the field of professional negligence or an individual experienced in the subject matter of the claim). Mediation a form of facilitated negotiation assisted by an independent neutral party. B6.3 The Legal Services Commission has published a booklet on Alternatives to Court, CLS Direct Information Leaflet 23 ( which lists a number of organisations that provide alternative dispute resolution services. B6.4 It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR. B7.Experts B7. (The following provisions apply where the claim raises an issue of professional expertise whose resolution requires expert evidence). B7.1 If the Claimant has obtained expert evidence prior to sending the Letter of Claim, the professional will have equal right to obtain expert evidence prior to sending the Letter of Response/Letter of Settlement. B7.2 If the Claimant has not obtained expert evidence prior to sending the Letter of Claim, the parties are encouraged to appoint a joint expert. If they agree to do so, they should seek to agree the identity of the expert and the terms of the expert's appointment. 20

21 A PPENDIX 2 PROFESSIONAL NEGLIGENCE PRE ACTION PROTOCOL B7.3 If agreement about a joint expert cannot be reached, all parties are free to appoint their own experts. (For further details on experts see Guidance Note C6) B8. Proceedings B8.1 Unless it is necessary (for example, to obtain protection against the expiry of a relevant limitation period) the Claimant should not start Court proceedings until: (a) the Letter of Response denies the claim in its entirety and there is no Letter of Settlement (see paragraph B5.5 above); or (b) the end of the negotiation period (see paragraphs B5.6 and B5.7 above); or (For further discussion of statutory time limits for the commencement of litigation, please see Guidance Note C7) B8.2 Where possible 14 days written notice should be given to the professional before proceedings are started, indicating the court within which the Claimant is intending to commence litigation. B8.3 Proceedings should be served on the professional, unless the professional's solicitor has notified the Claimant in writing that he is authorised to accept service on behalf of the professional. C. Guidance Notes C1. Introduction C1.1 The protocol has been kept simple to promote ease of use and general acceptability. The guidance notes which follow relate particularly to issues on which further guidance may be required. C1.2 The Woolf reforms envisage that parties will act reasonably in the pre action period. Accordingly, in the event that the protocol and the guidelines do not specifically address a problem, the parties should comply with the spirit of the protocol by acting reasonably. C2. Scope of Protocol C2.1 The protocol is specifically designed for claims of negligence against professionals. This will include claims in which the allegation against a professional is that they have breached a contractual term to take reasonable skill and care. The protocol is also appropriate for claims of breach of fiduciary duty against professionals. C2.2 The protocol is not intended to apply to claims: (a) against Architects, Engineers and Quantity Surveyors parties should use the Construction and Engineering Disputes (CED) protocol. (b) against Healthcare providers parties should use the pre action protocol for the Resolution of Clinical Disputes. (c) concerning defamation parties should use the pre action protocol for defamation claims. C2.3 Professional is deliberately left undefined in the protocol. If it becomes an issue as to whether a defendant is or is not a professional, parties are reminded of the overriding need to act reasonably (see paragraphs A4 and C1.2 above). Rather than argue about the definition of professional, therefore, the parties are invited to use this protocol, adapting it where appropriate. C2.4 21

22 A PPENDIX 2 PROFESSIONAL NEGLIGENCE PRE ACTION PROTOCOL The protocol may not be suitable for disputes with professionals concerning intellectual property claims, etc. Until specific protocols are created for those claims, however, parties are invited to use this protocol, adapting it where necessary. C2.5 Allegations of professional negligence are sometimes made in response to an attempt by the professional to recover outstanding fees. Where possible these allegations should be raised before litigation has commenced, in which case the parties should comply with the protocol before either party commences litigation. If litigation has already commenced it will be a matter for the Court whether sanctions should be imposed against either party. In any event, the parties are encouraged to consider applying to the Court for a stay to allow the protocol to be followed. C3. Inter action with other pre action methods of dispute resolution C3.1 There are a growing number of methods by which disputes can be resolved without the need for litigation, e.g. internal complaints procedures, the Surveyors and Valuers Arbitration Scheme, and so on. The Preliminary Notice procedure of the protocol (see paragraph B1) is designed to enable both parties to take stock at an early stage and to decide before work starts on preparing a Letter of Claim whether the grievance should be referred to one of these other dispute resolution procedures. (For the avoidance of doubt, however, there is no obligation on either party under the protocol to take any action at this stage other than giving the acknowledgment provided for in paragraph B1.4). C3.2 Accordingly, parties are free to use (and are encouraged to use) any of the available pre action procedures in an attempt to resolve their dispute. If appropriate, the parties can agree to suspend the protocol timetable whilst the other method of dispute resolution is used. C3.3 If these methods fail to resolve the dispute, however, the protocol should be used before litigation is commenced. Because there has already been an attempt to resolve the dispute, it may be appropriate to adjust the protocol's requirements. In particular, unless the parties agree otherwise, there is unlikely to be any benefit in duplicating a stage which has in effect already been undertaken. However, if the protocol adds anything to the earlier method of dispute resolution, it should be used, adapting it where appropriate. Once again, the parties are expected to act reasonably. C4.Multi Party Disputes C4.1 Paragraph B2.2 (a) of the protocol requires a Claimant to identify any other parties involved in the dispute or a related dispute. This is intended to ensure that all relevant parties are identified as soon as possible. C4.2 If the dispute involves more than two parties, there are a number of potential problems. It is possible that different protocols will apply to different defendants. It is possible that defendants will claim against each other. It is possible that other parties will be drawn into the dispute. It is possible that the protocol timetable against one party will not be synchronised with the protocol timetable against a different party. How will these problems be resolved? C4.3 As stated in paragraph C1.2 above, the parties are expected to act reasonably. What is reasonable will, of course, depend upon the specific facts of each case. Accordingly, it would be inappropriate for the protocol to set down generalised rules. Whenever a problem arises, the parties are encouraged to discuss how it can be overcome. In doing so, parties are reminded of the protocol's aims which include the aim to resolve the dispute without the need for litigation (paragraph A2 above). C5. Investigations 22

23 A PPENDIX 2 PROFESSIONAL NEGLIGENCE PRE ACTION PROTOCOL C5.1 Paragraph B4.3 is intended to encourage the early exchange of relevant information, so that issues in the dispute can be clarified or resolved. It should not be used as a fishing expedition by either party. No party is obliged under paragraph B4.3 to disclose any document which a Court could not order them to disclose in the pre action period. C5.2 This protocol does not alter the parties' duties to disclose documents under any professional regulation or under general law. C6. Experts C6.1 Expert evidence is not always needed, although the use and role of experts in professional negligence claims is often crucial. However, the way in which expert evidence is used in, say, an insurance brokers' negligence case, is not necessarily the same as in, say, an accountants' case. Similarly, the approach to be adopted in a 10,000 case does not necessarily compare with the approach in a 10 million case. The protocol therefore is designed to be flexible and does not dictate a standard approach. On the contrary it envisages that the parties will bear the responsibility for agreeing how best to use experts. C6.2 If a joint expert is used, therefore, the parties are left to decide issues such as: the payment of the expert, whether joint or separate instructions are used, how and to whom the expert is to report, how questions may be addressed to the expert and how the expert should respond, whether an agreed statement of facts is required, and so on. C6.3 If separate experts are used, the parties are left to decide issues such as: whether the expert's reports should be exchanged, whether there should be an expert's meeting, and so on. C6.4 Even if a joint expert is appointed, it is possible that parties will still want to instruct their own experts. The protocol does not prohibit this. C7. Proceedings C7.1 This protocol does not alter the statutory time limits for starting Court proceedings. A Claimant is required to start proceedings within those time limits. C7.2 If proceedings are for any reason started before the parties have followed the procedures in this protocol, the parties are encouraged to agree to apply to the court for a stay whilst the protocol is followed. 23

24 A PPENDIX 3 PRE ACTION PROTOCOL FOR CONSTRUCTION AND ENGINEERING DISPUTES Pre Action Protocol for Construction and Engineering Disputes 1 Introduction 1.1 This Pre Action Protocol applies to all construction and engineering disputes (including professional negligence claims against architects, engineers and quantity surveyors). 1.2 Exceptions A claimant shall not be required to comply with this Protocol before commencing proceedings to the extent that the proposed proceedings (i) are for the enforcement of the decision of an adjudicator to whom a dispute has been referred pursuant to section 108 of the Housing Grants, Construction and Regeneration Act 1996 ( the 1996 Act ), (ii) include a claim for interim injunctive relief, (iii) will be the subject of a claim for summary judgment pursuant to Part 24 of the Civil Procedure Rules, or (iv) relate to the same or substantially the same issues as have been the subject of recent adjudication under the 1996 Act, or some other formal alternative dispute resolution procedure. 1.3 Objectives The objectives of this Protocol are as set out in the Practice Direction relating to Civil Procedure Pre Action Protocols, namely: (i) to encourage the exchange of early and full information about the prospective legal claim; (ii) to enable parties to avoid litigation by agreeing a settlement of the claim before commencement of proceedings; and (iii) to support the efficient management of proceedings where litigation cannot be avoided. 1.4 Compliance If proceedings are commenced, the court will be able to treat the standards set in this Protocol as the normal reasonable approach to pre action conduct. If the court has to consider the question of compliance after proceedings have begun, it will be concerned with substantial compliance and not minor departures, e.g. failure by a short period to provide relevant information. Minor departures will not exempt the innocent party from following the Protocol. The court will look at the effect of non compliance on the other party when deciding whether to impose sanctions. For sanctions generally, see paragraph 2 of the Practice Direction Protocols Compliance with Protocols. 1.5 Proportionality The overriding objective (CPR rule 1.1) applies to the pre action period. The Protocol must not be used as a tactical device to secure advantage for one party or to generate unnecessary costs. In lower value claims (such as those likely to proceed in the county court), the letter of claim and the response should be simple and the costs of both sides should be kept to a modest level. In all cases the costs incurred at the Protocol stage should be proportionate to the complexity of the case and the amount of money which is at stake. The Protocol does not impose a requirement on the parties to marshal and disclose all the supporting details and evidence that may ultimately be required if the case proceeds to litigation. 2 Overview of the Protocol 2. General Aim The general aim of this Protocol is to ensure that before court proceedings commence: (i) the claimant and the defendant have provided sufficient information for each party to know the nature of the other s case; 24

25 A PPENDIX 3 PRE ACTION PROTOCOL FOR CONSTRUCTION AND ENGINEERING DISPUTES (ii) each party has had an opportunity to consider the other s case, and to accept or reject all or any part of the case made against him at the earliest possible stage; (iii) there is more pre action contact between the parties; (iv) better and earlier exchange of information occurs; (v) there is better pre action investigation by the parties; (vi) the parties have met formally on at least one occasion with a view to defining and agreeing the issues between them; and exploring possible ways by which the claim may be resolved; (vii) the parties are in a position where they may be able to settle cases early and fairly without recourse to litigation; and (viii) proceedings will be conducted efficiently if litigation does become necessary. 3 The Letter of Claim Prior to commencing proceedings, the claimant or his solicitor shall send to each proposed defendant (if appropriate to his registered address) a copy of a letter of claim which shall contain the following information: (i) the claimant s full name and address; (ii) the full name and address of each proposed defendant; (iii) a clear summary of the facts on which each claim is based; (iv) the basis on which each claim is made, identifying the principal contractual terms and statutory provisions relied on; (v) the nature of the relief claimed: if damages are claimed, a breakdown showing how the damages have been quantified; if a sum is claimed pursuant to a contract, how it has been calculated; if an extension of time is claimed, the period claimed; (vi) where a claim has been made previously and rejected by a defendant and the claimant is able to identify the reason(s) for such rejection, the claimant s grounds of belief as to why the claim was wrongly rejected; (vii) the names of any experts already instructed by the claimant on whose evidence he intends to rely, identifying the issues to which that evidence will be directed. 4 The Defendant s Response 4.1 The defendant s acknowledgment Within 14 calendar days of receipt of the letter of claim, the defendant should acknowledge its receipt in writing and may give the name and address of his insurer (if any). If there has been no acknowledgment by or on behalf of the defendant within 14 days, the claimant will be entitled to commence proceedings without further compliance with this Protocol. 4.2 Objections to the court s jurisdiction or the named defendant If the defendant intends to take any objection to all or any part of the claimant s claim on the grounds that (i) the court lacks jurisdiction, (ii) the matter should be referred to arbitration, or (iii) the defendant named in the letter of claim is the wrong defendant, that objection should be raised by the defendant within 28 days after receipt of the letter of claim. The letter of objection shall specify the parts of the claim to which the objection relates, setting out the grounds relied on, and, where appropriate, shall identify the correct defendant (if known). Any failure to take such objection shall not prejudice the defendant s rights to do so in any subsequent proceedings, but the court may take such failure into account when considering the question of costs Where such notice of objection is given, the defendant is not required to send a letter of response in accordance with paragraph in relation to the claim or those parts of it to which the objection relates (as the case may be). 25

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