Expert. Clear. Professional. PROFESSIONAL NEGLIGENCE CLAIMS STREAMLINE SERVICE
SMALL CLAIMS AND STREAMLINE SERVICES Bringing a claim in professional negligence can be expensive. We want to make sure we provide an affordable service to all our clients. Court rules provide that claims worth less than 10,000 will usually be dealt with under the small claims track which states that legal costs are generally not recoverable. We have devised our Streamline service for those claims that would normally be allocated by the court to the small claims track and for some other larger claims as well. Based on the information you have provided, it would appear that either the value of your claim may be less than 10,000 or if more, we believe our Streamline Service may be appropriate. WHAT IS THE STEAMLINE SERVICE AND HOW DOES IT WORK? There are various stages of a claim. We charge a fixed fee for each stage. You can basically choose which of those you want us to do for you. But the first step will always be a review of the papers. We will always need to do this to familiarise ourselves with the nature and extent of the claim and the available evidence. So the first stage is the review stage: Review Stage a. We request the file from the professional who you claim was negligent ( the Defendant ), review this and advise you following that review or b. We review your papers and advise you following that review. Once we have reviewed the papers and advised, we can proceed with the following optional stages, set out below Optional Stages 1. Instruct an Expert 2. Instruct a Barrister for a Second Opinion 3. Preliminary Notice 4. Letter of Claim 5. Negotiations 6. Commence Court Proceedings You can choose any number of the Optional Stages but should have regard to the advice set out within our Terms of Business Letter under the sub-heading Estimate. The following information will give you a more detailed overview of each of our services, what considerations are the relevant considerations, and how much it will cost.
Review Stages a. Request file from the Defendant, review and advise 900 1. If your claim is against a Solicitor, they are sometimes entitled to retain your file and do not have to provide their papers to us. Also, if a Solicitor s firm is no longer trading, we may have to take other steps to try and obtain the necessary documentation and/or information to advance your claim. Should this happen, we will let you know but note that such additional work may carry additional fees but we can discuss this with you at that point. 2. Other professionals do not have to hand over their full file of papers so you may want to just instruct us to review your papers and advise (review stage b). However, whilst not being obliged to, the professional may be happy to provide us with all of their papers in which case we could then have further helpful evidence to support your claim. 3. If your claim is against a professional other than a Solicitor, we may not be able to advise on the merits and/or value of a claim without an expert s opinion. Whilst we are specialists in professional negligence claims, we cannot determine whether, for instance, an accountant has done something wrong or what the value of a property should have been. In these circumstances, it may be necessary to Instruct an Expert (see Option 1) (so an accountant or valuation surveyor for instance) to report upon whether the professional was negligent and/or what financial losses have flowed from that negligence. 4. As you can appreciate, professional negligence claims against Solicitors can arise from any area of law practiced in England and Wales and whilst we have expertise in many legal areas, it may be advisable or indeed necessary to Instruct a Barrister for a Second Opinion (see Option 2). Many professional negligence claims are not straightforward and a novel or complex point of law may be relevant so it may be necessary to Instruct a Barrister for a Second Opinion (Option 2). If you were to later instruct us to Commence Court Proceedings (Option 6), we would probably use the same barrister to draft the court papers and so it would be advantageous if they were already familiar with your claim. b. Review your papers and advise 750 1. As a potential Claimant in a professional negligence claim, you should be aware that you have a Duty of Disclosure. Therefore, it is very important that you provide us with all documents which are pertinent to your claim. These will include all relevant documents, not only those which are helpful to you, but also those which may be helpful to the other side. 2. Documents does not only mean documents written on paper but includes anything upon which evidence or information is recorded including tape recordings, videos, physical evidence, etc. To destroy any evidence which may be relevant to your claim (be it supportive or not) can have serious consequences. We can only advise you based on papers you give us so if you do not give us all documents at the outset, you could end up receiving inaccurate advice which could cause you to incur additional, and potentially avoidable, expense. As we need to have all such paperwork, you may want to instead instruct us to carry out Review Stage a. Request file from the Defendant, review and advise. 3. If your claim is against a professional other than a Solicitor, we may not be able to advise on the merits and/or value of such a claim without an expert s opinion. Whilst we are specialists in professional negligence claims, we cannot determine whether, for instance, an accountant has done something wrong or what the value of a property should have been. In these circumstances, it may be necessary to Instruct an Expert (see Option 1) (so an accountant or valuation surveyor for instance) to report upon whether the professional was negligent and/or what financial losses have flowed from that negligence 4. As you can appreciate, professional negligence claims against Solicitors can arise from any area of law practiced in England and Wales and whilst we have expertise in many legal areas, it may be advisable or indeed necessary to Instruct a Barrister for a Second Opinion (see Option 2). Many professional negligence
claims are not straightforward and a novel or complex point of law may be relevant so it may be necessary to Instruct a Barrister for a Second Opinion (Option 2). If you were to later instruct us to Commence Court Proceedings (Option 6), we would probably use the same barrister to draft the court papers and so it would be advantageous if they were already familiar with your claim. Optional Stages 1. Instruct an Expert 650 1.1. In a claim against a professional other than a Solicitor, and where there is no clear evidence identified during the Review Stage, it may be necessary to obtain further evidence from an appropriately qualified expert (i.e. account, surveyor, etc.) before we are able to assess the merits and/or value of your claim. 1.2. In order to keep costs to a minimum, we usually suggest getting a preliminary report to start off with. We will be able to arrange this for you by finding a suitable expert, obtaining your agreement to their fee, instructing them to provide a report, and advising you on its content once it is produced. 1.3. If you think that you may want to continue the claim through the Court, but your claim is worth more than 10,000, then you will have to obtain updated evidence from the expert which complies with the Court rules. If your claim is a small claim, a preliminary report will usually suffice. 1.4. As well as our cost of instructing the expert, there will be the expert s fee for producing the report. If you issue proceedings at Court and go on to be successful, you may be able to recover the expert fee (but only up to 750 if the matter is a small claim) from the other side for the cost of the expert s report. 1.5. When it comes to an expert producing a report, the more documents they have made available to them, the more robust and reliable their opinion should be. Because of this, you should carefully consider which Review Stage you wish to instruct us to carry out. 1.6. Often, people do not know that a professional has been negligent until another professional informs them; such as when a new accountant is instructed to take over someone s finances. In those circumstances, the new professional may be willing to provide a letter setting out the errors which have been made and the associated financial losses caused as a result of those errors. Whilst this can be helpful during the early stages of a claim, it is unlikely you would be able to rely upon that letter or indeed that professional s opinion if the claim came to be decided by a Judge. Not only would it not be compliant with the court rules (as expert s reports must have a particular form and content) but that professional would likely not be considered an independent expert in the circumstances. 1.7. In claims against Surveyors, an expert s report will always be required in order for us to be able to determine the value of your claim. 2. Instruct a Barrister for a [Second] Opinion 200 2.1. Many professional negligence claims are not straightforward and a novel or complex point of law may be relevant so it may be necessary to Instruct a Barrister for a Second Opinion. We will, however, only suggest that a barrister s opinion is sought if it is absolutely critical to your claim. 2.2. If it was advisable to seek a second opinion, we can find a suitable barrister, obtain your agreement to their fee, instruct them to provide their opinion on the relevant issues, and assist you in understanding the barrister s opinion and its consequences upon your claim once received. 2.3. The barrister s fee will be in addition to our cost for instructing them. If your claim is a small claim then you are unlikely to be able to recover the barrister s fee, even if you go on to be successful in your claim.
2.4. If you were to later instruct us to Commence Court Proceedings (Option 6), we would probably use the same barrister to draft the court papers. It would be advantageous if they were already familiar with your claim (i.e. their cost for preparing the Court documents should be lower than they otherwise would be). 3. Preliminary Notice 100 3.1. The Preliminary Notice is the first step in the Court s guidance as to how professional negligence claims should begin. It is a document which sets out brief details only of your claim and is intended to put the professional on notice of your intention to bring a claim. 3.2. Preliminary Notice can be a very quick way of resolving your claim if you were to instruct us to attempt Negotiations (Option 5) at the same time. We would often recommend this for very low value claims. 3.3. Once a Preliminary Notice is sent, the other side is not required to do anything other than acknowledge its receipt. Although this is a required step in the process, you could instruct us simply to prepare a full Letter of Claim (Option 4). However, you should be aware that the Court can potentially issue sanctions if all the required steps are not carried out; but for low value claims, the Court is mindful of the proportionality of costs and therefore may be more understanding if a Preliminary Notice was not sent. 4. Letter of Claim 700 4.1. This is the main step in preparing a claim before Court action is commenced. Legal proceedings should not be issued at Court before this step is undertaken otherwise the Court could sanction you for a failure to follow the rules. 4.2. A Letter of Claim is intended to set out your claim in sufficient detail to allow the other side to investigate matters, consider your allegations of negligence, the value of your claim and potentially engage in Negotiations (Option 5). 4.3. Once the Letter of Claim is sent the other side can have up to almost 4 months to investigate your claim before they are required to respond. There is nothing that can be done during that time to force them to respond earlier. 4.4. Before we receive the Letter of Response, it is quite common for the other side to ask questions, or seek clarification upon the issues raised in the Letter of Claim. We will respond by either providing the information they request or, where appropriate, telling them they have all the necessary information. 4.5. It is also quite common for the other side to ask for more time to provide a Letter of Response. Where we consider this reasonable we will agree an extension of up to 28 days without recourse to you. 4.6. Once the Letter of Response is received, we will advise you on the position the other side is taking and what your options are. 4.7. If the other side denied your claim in its entirety, you could then issue your claim at Court and you may then want to instruct us to Commence Court Proceedings (Option 6). 4.8. In any other circumstances, there will be a further extension of time for the parties to attempt to resolve matters through discussion and negotiations before Court proceedings can be issued.
4.9. If the other side make an offer of settlement, we could not advise you on its merit until you instructed us to undertake Negotiations (Option 5). 5. Negotiations 500 5.1. Whilst we hope to be able to provide you with some indication as to the likely amount(s) of your claim following the Review Stage, it may simply not be possible to assess its value without first having to Instruct an Expert (Option 1) or Instruct a Barrister for a Second Opinion (Option 2). 5.2. Without knowing the true value of your claim, we could still engage in Negotiations, but there could be a risk that your claim is settled for less than it is actually worth. Further there is no guarantee the other side will be willing to entertain settlement discussions at all. 5.3. Whilst we would seek to claim the maximum amount of compensation for you, it is common that claims settle for less to take into account litigation risk (i.e. the possibility that your claim could fail entirely or that you would only succeed to recover a lesser sum than that claimed). Negotiations take account of various factors such as the strength of your claim, the possible arguments which may be raised by the other side, the lack of supportive evidence, and costs etc. We will :- 5.3.1. (subject to the possible restrictions noted above) advise you as best we can on the information available to us on the possible value of the claim, the litigation risks involved and what, in light of those risks, would be a reasonable settlement amount; 5.3.2. advise you on what type of offer you should make; and 5.3.3. deal with and advise you upon a maximum of 3 offers passing between the parties. 5.4. As you can appreciate, Negotiations could potentially go on indefinitely. Therefore, after 3 offers have passed between the parties, should you wish for us to continue to engage in further Negotiations we would have to charge an additional fixed fee; we can discuss this with you if the need were to arise. 6. Commence Court Proceedings 500 6.1. Legal proceedings should generally not be issued at Court before a Letter of Claim (Option 4) has been sent and a Letter of Response has been received, otherwise the Court may penalise the defaulting party for a failure to follow the rules. 6.2. As the court Rules encourage Negations (Option 5) between parties there will normally be a period for these before seeking the Court s involvement in a dispute. Negotiations also avoid having to incur additional expense, such as the Court issue fee (see further below). 6.3. We would normally instruct a barrister to prepare the necessary Court papers for you. The barrister s fee will be in addition to our fixed fee to Commence Court Proceedings. If we have already been asked to Instruct a Barrister for a Second Opinion (Option 2), the barrister s fee would generally be less than it would otherwise be as he or she will be familiar with the claim. You should note that if your claim is a small claim, then you would likely not be able to recover the barrister s fee, even if you go on to be successful in your claim. 6.4. Once the Court documents have been prepared, we will send these to you for your approval and signature, and we will advise you regarding any necessary formalities. 6.5. Thereafter, we would collate all of the necessary documentation and send your claim to be issued at Court. Once we have sent the claim to Court, you will then have to liaise with the Defendant and follow
the Court s directions to prepare for trial. Due to the unpredictability of litigation, once we have submitted the papers to the court, we would only be able to continue to represent you based on our hourly rates rather than on a fixed fee basis. We can provide details of our hourly rates upon request. 6.6. If your claim is a small claim and is successful, you may only be able to recover in the region of 100 for your legal costs from the other side. 6.7. If your claim is not a small claim, and you are successful, then you can reasonably expect to recover in the region of 60-70% of your legal costs from the other side. 6.8. The court charges a fee to issue a claim. The amount of the issue fee varies but, for example, for claims worth between 5,000 and 15,000 the fee is currently 455. The Court issue fee is in addition to our fixed fee and the barrister s fee but, if you go on to be successful, you can reasonably expect to recover the Court issue fee from the other side. 6.9. You should be aware that that there will be a further Hearing fee payable if the claim proceeds to a final hearing before the Court. The Hearing fee payable is on a sliding scale depending on the possible value of the claim. July 2014 33 Henrietta Street, Covent Garden London WC2E 8NA Telephone: 020 7420 7020 Email: enquiry@sethlovis.co.uk www.sethlovisproneg.co.uk Seth Lovis & Co Solicitors is a trading style of Seth Lovis & Co Solicitors Limited, a limited company registered in England and Wales (registered number 08913382, registered at the above address) which is authorised and regulated by the Solicitors Regulation Authority.