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.

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 you have any expert evidence, and whether you are prepared to share it.
6. Propose ADR.

The professional must 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 — most claims that mediate, settle.
• The Professional Negligence Bar Association adjudication scheme — a fast, written procedure producing a non-binding (unless agreed otherwise) decision from a specialist barrister, suited to claims below around £100,000.
• 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

Almost every professional negligence claim needs an expert from the same profession to say what a reasonably competent practitioner would have done. 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

Within the protocol, each side bears its own costs. 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 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.