What should be in a letter before claim for professional negligence?

In all professional negligence disputes the Civil Procedural Rules state that before starting a claim, certain procedural steps must be followed (depending on which type of professional you intend to sue). Informally known as a letter before action, a letter before claim (“LBC”) is a letter sent from a claimant to a potential defendant which setting out the details of the claim.

Do you have a claim against a professional? If you want expert legal advice, do not delay in instructing us so we can assess the legal merit of your case. We can often take on such claims on a no win no fee basis (such as a Conditional Fee Arrangement) once we have discussed the claim with you and then assessed and advised you on the merits of the proposed professional negligence action.

Our expert legal team of leading Professional Negligence Solicitors & Barristers can provide urgent help, advice or representation to you. Just call our Professional Negligence Lawyers on 02071830529 or email us now.

What is a letter before claim?

letter before claim (sometimes known as a ‘letter before action‘) is a letter putting a person on notice that court proceedings may be brought against them.

What does a letter before action mean?

A letter before action is the same as letter before claim, just a more colloquial term. A letter before action for a professional negligence claim should ideally follow the rules set out in Pre-Action Protocol for Professional Negligence (professional negligence PAP).

Why do I need to write a letter before claim?

If a dispute proceeds to litigation, the court will expect the parties to have complied with a relevant pre-action protocol or this Practice Direction. The court will take into account non-compliance when giving directions for the management of proceedings (see CPR 3.1(4) to (6)) and when making orders for costs (see CPR 44.3(5)(a)). The court will consider whether all parties have complied in substance with the terms of the relevant pre-action protocol or this Practice Direction and is not likely to be concerned with minor or technical infringements, especially when the matter is urgent (for example an application for an injunction).

What are the pre-action protocols and why are they important?

Pre-action rules govern the conduct of the parties and what steps should be taken before issuing a claim. Non-compliance with UK litigation pre-action protocols may mean a party is later punished by the court in terms of costs.

Before proceedings are commenced, the parties are required to act reasonably in exchanging information and documents relevant to the dispute. The aim is to avoid the need for legal proceedings by encouraging resolution of the dispute by other means.

What is the pre-action protocol for professional negligence?

Parties to litigation or contemplating litigation must adhere to the Civil Procedure Rules 1998 (the CPR). Therefore, the provisions of the CPR are applicable, in particular the Pre-Action Protocol for Professional Negligence (professional negligence PAP).

The updated PAP for professional negligence came into effect in May 2018, on which date claims to be issued from then must comply with.

All the parties are encouraged to attempt to settle the professional negligence claim without issuing formal proceedings in court. The PAP sets out the framework to be followed and encourages an exchange of information and a set timetable, which both parties must comply with to encourage early settlement without the need for a costly court process.

When does the professional negligence Pre-Action Protocol apply?

It applies to negligence claims against legal professionals, accountants, financial advisers, auditors and certain other professionals. However, it doesn’t apply to claims against construction professionals, (e.g. architects, engineers and quantity surveyors) as the Pre-action Protocol for Construction and Engineering Disputes is applicable instead. Nor against healthcare professionals (see the PAP for the Resolution of Clinical Disputes) or in defamation cases (see the PAP for Defamation Claims).

What is in a Preliminary Notice?

The claimant should notify the potential defendant(s) in writing as soon as it decides that there is a reasonable chance of a claim for negligence by submitting a preliminary notice which must:

  • identify the claimant and any other parties;
  • contain a brief outline of the prospective claim;
  • provide a general quantification of the financial value of the claim;
  • request that the professional inform their professional indemnity insurers (if any, NB law firms are most likely to have professional indemnity insurance).

The defendant professional ought to acknowledge receipt of the letter within 21 days of receiving it. Sending a preliminary notice is an important first step in a professional negligence claim particularly because the professional is required to notify their professional indemnity insurer. If a professional fails to do so once the preliminary notice (or Letter of Claim) is received then this may invalidate their insurance policy.

What do I put in a Letter of Claim?

As soon as the claimant has decided that there are potential grounds for a professional negligence claim, then it should send a Letter of Claim to the professional which amounts to a notice of intention to commence legal proceedings. It is recommended that the assistance of specialist professional negligence lawyers is sought for this correspondence as this is an important letter and if not handled correctly can lead to a reduced chance of obtaining a settlement or reduced prospects at trial especially if the subsequent Particulars of Claim (which is a statement of case) differs from the Letter of Claim in which case the court has the discretion to impose sanctions. The professional negligence pre-action protocol states that the Letter of Claim should include:

  • the identities of any parties involved in the dispute, or any related dispute (it is important to identify any and all correct defendants including successor entities before the limitation period expires);
  • a chronology containing key dates of the facts on which the claim is based, together with copies of all key documents;
  • reasonable requests which the claimant needs to make for documents held by or in control of the professional;
  • any details of the allegations made by the claimant against the professional;
  • an estimate of the financial loss caused to the claimant by the alleged negligence, including details of how the loss is calculated (in any claim this figure will likely be the subject of expert evidence, for example, consequential losses or loss of chance are difficult to quantify at the outset of a claim without expert evidence therefore an estimate will suffice at this stage, for example “in excess of £2 million”);
  • confirmation of whether or not an expert has been appointed (expert evidence is an important part of any claim in litigation and as experienced professional negligence lawyers we have forged many contacts with leading experts in different industries from forensic accounts to hedging derivatives experts);
  • a request that a copy of the Letter of Claim be forwarded on receipt to the professional’s indemnity insurers (if they have any);
  • an indication of whether you agree to refer the dispute to adjudication. If so, propose three adjudicators or seek a nomination. If you don’t wish to refer the dispute to adjudication, you should give reasons.

In addition, if the claimant has sent other Letters of Claim to any other party in relation to the same dispute or a related dispute, those letters should also be provided with the Letter of Claim.

What is a Letter of Acknowledgment?

The Letter of Claim is to be acknowledged by the professional within 21 days. If the defendant does not do so, the court has the discretion to levy sanctions.

What is the Letter of Response?

This is a letter sent in open communication (i.e. not sent on a without prejudice basis therefore the court will see it) responding to your allegations. Whilst it doesn’t have the formal status of a Defence (which is a statement of case), the court has the discretion to impose any sanctions if it is materially different from the Defence in any court proceedings. The Letter of Response is required to comply with the provisions of the professional negligence PAP and must:

  • clearly state which parts of the claim in the Letter of Claim are either admitted or denied. Alternatively, the professional can request further information if it is unable to admit or deny on the evidence it currently has to hand;
  • provide specific comments on each allegation in the Letter of Claim;
  • provide the professional’s version of events (especially if the claimant’s version is different);
  • provide a response to the claimant’s estimated quantification of loss (even if liability is made out, it does not necessarily follow that the defendant is liable for all losses claimed and quantification of losses is a precise endeavour which the court invests time into);
  • identify and enclose copies of any key documents.

In a meritorious case which was well set out in a Letter of Claim, the Letter of Response or a separate Letter of Settlement may offer the possibility of alternative dispute resolution (ADR) such as mediation or a without prejudice meeting. This could lead to resolution of the dispute. If not then you will need to take advice as to whether to reply further or to issue a Claim Form at court (the latter of which can be an important tool in focusing the parties on the resolution of the claim especially in circumstances where the professional is not taking meritorious allegations against it seriously).

Should a Letter of Response admit or deny the claim?

Yes, or alternatively the professional should state why the claim can neither be admitted nor denied.

If the claim is admitted the professional should say so in clear terms. If the claim is denied in whole or in part, the Letter of Response should include specific comments on the allegations against the professional. If the professional is unable to admit or deny the claim, the professional should explain why and identify any further information which is required.

Book an Initial Consultation with our Professional Negligence Lawyers

Do you have a claim against a professional? If you want expert legal advice, do not delay in instructing us so we can assess the legal merit of your case.

We can often take on such claims on a no win no fee basis (such as a Conditional Fee Arrangement) once we have discussed the claim with you and then assessed and advised you on the merits of the proposed professional negligence action.

Our expert legal team of leading Professional Negligence Solicitors & Barristers can provide urgent help, advice or representation to you. Just call our Professional Negligence Lawyers on 02071830529 or email us now.

Instruct Specialist Professional Negligence Solicitors

We are a specialist City of London law firm made up of Solicitors & Barristers operating from the only law firm based in the Middle Temple Inn of Court adjacent to the Royal Courts of Justice. Our team have expertise in advising on claims for compensation against professionals that have fallen below the standard expected, which causes clients financial or personal loss. We are experienced in bringing successful claims against negligent solicitors, barristers, financial advisers, insurance brokers, surveyors, valuers, architects, tax advisers and IFAs.

Want legal advice on the merits of your case?

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LIMITATION ACT 1980 – WARNING

The Limitation Act 1980 sets out strict statutory deadlines within which you must bring litigation claims. Your legal rights will become irreversibly time-barred if you fail to take legal action (or defend a claim on time). Therefore, you should seek specific legal advice about your legal dispute at the very first opportunity so that you understand the time you have left. Failure to take advice or delay in taking action can be fatal to your prospects of success.

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