The professional negligence pre-action protocol: what happens before a claim is issued

Claims against professionals in England and Wales follow a dedicated procedure — the Professional Negligence Pre-Action Protocol — before any court is involved. Understanding it explains both the timetable and why these claims, more than most, settle without trial. It does not cover claims against architects, engineers and quantity surveyors, which follow the Pre-Action Protocol for Construction and Engineering Disputes instead: see the construction pre-action protocol and the TCC.

Step 1 — Preliminary notice

As soon as you decide you may have a claim, you (or your solicitor) send a short preliminary notice to the professional. It identifies you, the professional's involvement, and a brief outline of the grievance and, if possible, the likely value. It does not need detail.

Its purpose is to let the professional notify their insurer. Professional indemnity policies are usually "claims made" — the insurer covers claims notified during the policy year — so early notice protects the professional's cover, and therefore your recovery. The professional should acknowledge within 21 days.

Step 2 — Letter of claim

The letter of claim is the substantive document. It should:

1. Set out the facts, in chronological order, with the key documents enclosed.
2. State the allegations of breach of duty — what the professional did or failed to do, and what a reasonably competent professional would have done.
3. Explain causation — what you would have done had they not been negligent.
4. Set out your loss, with a calculation and supporting evidence.
5. Confirm whether an expert has been appointed and, if so, who, in what discipline and when.
6. Say whether you want to refer the dispute to adjudication (proposing adjudicators) or, if not, why not.
7. Ask for the letter to be passed to the professional's insurers.

The professional should acknowledge within 21 days. The letter of claim is not a pleading and does not bind you as a claim form would, but a court will expect the claim eventually issued to be consistent with it.

Step 3 — Letter of response and letter of settlement

The professional then has three months from acknowledgement to investigate and reply with either or both of:

• a letter of response — accepting or denying the allegations, with reasons, and their own version of the facts and documents; and/or
• a letter of settlement — a proposal to resolve the claim, which may be without prejudice.

If they deny the claim in full and make no proposal, the protocol is complete and proceedings can be issued. If they admit or propose, negotiations follow. Extensions are common and should be agreed in writing, with attention to limitation.

Step 4 — Alternative dispute resolution

The protocol requires both sides to consider ADR. In professional negligence the usual routes are:

• Mediation — a negotiation with an independent mediator, who helps the parties reach their own agreement.
• Adjudication, for example under the Professional Negligence Bar Association's scheme — a consensual, fast, written procedure in which a specialist barrister gives a decision that binds the parties either permanently or temporarily (until a court decides), as they choose at the outset.
• Without prejudice negotiation — often through a joint settlement meeting.

Refusing ADR without good reason risks a costs penalty if the claim goes to trial.

Experts

Many professional negligence claims need expert evidence on breach of duty, causation or loss, though the court only allows expert evidence that is reasonably required (CPR 35.1). Under the protocol, parties are encouraged to consider a single joint expert where appropriate. If you have already obtained a report — a second surveyor's opinion, for instance — your solicitor will decide whether and when to disclose it.

What it costs, and who pays

The protocol itself says nothing about who pays the costs of the pre-action stage. If proceedings follow, those costs can form part of the costs the court orders; if the claim settles first, the settlement terms decide. Once proceedings are issued, the general rule that the loser pays the winner's costs applies, subject to fixed recoverable costs on the fast and intermediate tracks (claims up to £100,000 that meet those tracks' other conditions). That cost exposure — on both sides — is the pressure that produces settlements.

What a solicitor will want from you

• The engagement letter and terms with the professional.
• Everything the professional produced: report, advice, documents.
• A dated chronology of what happened and when you found out.
• Evidence of loss and any expert opinion you already have.
• Your correspondence with the professional, including any complaint.
• The key dates for limitation.

This guide is general information about the law and procedure of England and Wales. It is not legal advice. The protocol does not stop the limitation clock.