If you believe that you have received poor advice or service from a professional, be it a solicitor, accountant, surveyor, insurance broker or barrister, and you have suffered a loss as a result of that poor advice or service, then you may be able to pursue a claim against that professional.
Whilst it is advisable to seek legal advice in relation to any potential claim, this blog sets out a few useful points to take into account when considering pursuing a claim.
Am I in time to bring a claim?
The usual rule is that you have six years from the date of the professional’s breach to bring a claim. This is known as the limitation period. Whilst the date of their breach may be easy to identify in some cases (i.e. the day poor advice was given, the day a court deadline was missed etc.), in other cases it may be more difficult to identify when the breach occurred. In some cases, it may be possible to extend the limitation period for you to bring your claim. It is always worth seeking legal advice if limitation is likely to be an issue in your claim.
What documents or evidence will I need?
The more documents or evidence you have the better. Your legal advisers will be able to tell you which documents or evidence is relevant to your claim. If you have text messages, emails, WhatsApp messages, voicemails or any other electronic documents, all are likely to be of use in your claim. Copies of any advice received, contracts or client care letters are also likely to be highly relevant.
If you do not have documents, then it still may be possible for your legal advisers to request a copy of your file from your solicitors, accountants etc.
Work out what losses you have suffered
You will be entitled to recover any losses that you incur as a result of the professional’s negligence. These losses, however, must be reasonably foreseeable and not too remote. Again, if in doubt, seek legal advice as to what losses you may be able to recover as part of your claim. You can also usually include interest and legal costs as part of your claim.
The Professional Negligence Pre-Action Protocol
Prior to commencing court proceedings in any professional negligence claims, parties are obliged to consider whether it is appropriate for them to follow the Professional Negligence Pre-Action Protocol (PNPAP). If a party does not follow the PNPAP or fails to provide a good reason for not following it, the court can impose costs sanctions for their failure to apply.
If limitation is an issue, the parties may have a legitimate reason for not complying with the PNPAP. In these circumstances, parties should consider whether it would be appropriate to agree a standstill agreement, which essentially freezes the limitation period, in order to allow the parties to then follow the PNPAP. This may be a more cost-effective approach than issuing a claim and then agreeing a stay of proceedings.
The PNPAP sets out a number of procedural steps that the parties should follow before formal court proceedings are issued:
- Preliminary Notice of Claim – as soon as you decide to pursue a claim, a notice should be sent to the professional to inform them of the claim. The notice should contain details of the identity of the parties, a brief outline of the claimant’s grievance and an indication of the value of the claim. The notice should also request that the professional notify their professional indemnity insurers about the claim. The professional (or their solicitor) should acknowledge receipt of the preliminary notice within 21 days of receipt of the same.
- Letter of Claim – following the Preliminary Notice, the Claimant (or their solicitors) should then send the Defendant (or in most cases the Defendant’s insurers or their solicitor) a detailed Letter of Claim, setting out a more detailed chronological summary of events upon which the Claimant’s claim is based and providing copies of key documents upon which the Claimant is seeking to rely. It should also set out in more detail the allegations against the professional and a summary of the law as to how the actions of the professional have led to the Claimant suffering a loss. The Letter must also set out an estimate of the Claimant’s losses and how these have been calculated and again provide copies of any documents to back up those losses.
- Investigations – the Defendant should acknowledge receipt of the Letter of Claim within 21 days of receipt. Following this, the Defendant then has a period of three months to investigate the matters set out in the Letter of Claim and to reply to the Claimant.
- Letter of Response and/or Letter of Settlement – the reply from the Defendant can either be in the form of a Letter of Response or a Letter of Settlement or both.
The Letter of Response should be an open letter and should answer each of the Claimant’s allegations and confirm which parts of the Claimant’s claim are either admitted or denied. The Defendant should provide clear explanations as to why any parts of the claim are denied. If the Defendant does not agree with the Claimant’s estimate of loss, they should provide details of what they believe the losses are or confirmation as to when they will be able to quantify such losses. If the Defendant wishes to rely on any key documents that have not already been exchanged, they should provide them with the Letter of Response.
If the Defendant wishes to make an offer to settle the claim, they may also wish to send a Letter of Settlement at the same time or instead of the Letter of Response.
If a resolution cannot be reached, then parties will often try to negotiate. If this does not prove successful, then then the Claimant will be able to commence proceedings.
Alternative Dispute Resolution (ADR)
The PNPAP provides an obligation on the parties to consider a form of alternative dispute resolution (ADR) namely, mediation, arbitration, early neutral evaluation, adjudication or an Ombudsman scheme. If proceedings are issued, the parties may need to show that they considered a form of ADR and why it was not appropriate. If found to have unreasonably refused to participate in ADR, there could be costs sanctions against the party who refused to take part in ADR.
If no resolution can be reached, then it is open to the Claimant to issue formal court proceedings. These should be seen as a last resort and before undertaking such a step, the parties are encouraged to carry out a ‘stocktake’ of their position and the relevant papers and if possible, seek to narrow any issues to see if proceedings can be avoided.