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Professional negligence is a term that most people know yet few people can explain. In broad terms, claims regarding professional negligence are generally made when an individual feels they have been let down by a professional, and, as a result of this, the individual has suffered a loss. This loss can be financial or otherwise but it must have occurred as a consequence of poor service provided by a professional for the individual to have a claim. The type of professional that can be claimed against commonly includes solicitors, barristers, accountants, surveyors, financial advisors, project managers, planning consultants and architects, yet a professional negligence claim can be brought against negligent individuals in almost any profession.
However, there is a reason why professional negligence cases do not appear to make the headlines as often as other areas of the law. Professional negligence is a specialist topic and not an area of general practice for solicitors, and because of this professional negligence cases appear with less regularity than, for example, widely publicised areas of the law such as accident claims. The specialist nature of professional negligence has the effect of reducing the number of solicitors who are sufficiently aware of the issues involved to enable them to undertake professional negligence work effectively. This can make the building of a professional negligence claim quite difficult for an individual if they hire a solicitor that does not absolutely understand all the potential aspects of a professional negligence claim.
Expertise in professional negligence can be reflected in various ways by a solicitor. One of the most obvious things to look for when choosing a solicitor for a professional negligence case is to gauge the amount of professional negligence cases they are instructing upon and, perhaps a little more importantly, the success they are achieving in those cases. Of course, there is more to choosing a solicitor than the sheer amount of cases they receive – a large law firm may simply get more cases due to being just that. It is important the solicitor you choose, regardless of the size of the firm, has the necessary levels of experience and resources to provide advice, assistance and representation in order for the client to be successful in their potential claim against a professional.
In more detail, there are a number of elements that need to be examined before an individual can be fully confident that they have hired the right solicitor for the job. A quick and efficient review of any potential claim is a good starting point, followed by clear and straightforward advice on the merits of any potential claim. This should include a full explanation of the practice and procedures involved in pursuing a claim, and transparency in regards to the costs involved in pursuing a claim. If the solicitor offers the availability of alternative means of funding to include conditional fee agreements, then this can, depending on your circumstances, be extremely helpful too. A “no-win no-fee” arrangement enables you to pursue a claim without having to pay much (or sometimes anything) unless you are successful. A solicitor with good knowledge of professional negligence claims will be confident in their ability to assess accurately the merits of a claim, and will therefore often be prepared to take the chance that they may not be paid if the claim is unsuccessful.
Ultimately, it helps to remember that if a solicitor decides that an individual's potential claim does not merit pursuing then the individual can take their potential claim elsewhere.
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The Civil Justice Council (CJC) has completed various studies and is now seeking to establish the introduction of pre-action protocols across all actions which can be litigated in the Courts. The introduction of these pre-action protocols is aimed at persuading potential litigants to attempt to resolve their dispute before they start a claim and demands for Court proceedings are issued.
There are well-defined pre-action protocol obligations that are in place for nine areas, the better known of which are:
• Personal Injury
• Clinical Disputes
• Construction and Engineering Disputes
• Professional Negligence
The CJC, which wishes to introduce further pre-action protocols, has been concerned not to tamper with those established protocols. As a result of this, the CJC proposes that a ‘general pre-action protocol' be introduced. The rules of the ‘general pre-action protocol' will be both applicable and obligatory, unless the dispute falls within one of the nine pre-existing pre-action protocols currently in force.
The idea behind pre-action protocols is to encourage potential litigants to make every effort to resolve their dispute prior to actually starting a claim. The new general protocol will require disclosure of documents and consideration of alternative dispute resolution (ADR), including arbitration.
In debt claims, the general pre-action protocol will require business claimants with potential claims against an unrepresented individual to provide a series of particular pieces of information. Firstly, they must ensure that details are made available as to how the money owed can be paid. Secondly, details of who the Defendant should contact to discuss the repayment, such as instalments or deferment, must also be made available. In addition to these, information about sources of fee debt advice must be included as well.
This information will not have to be part of the initial pre-action protocol letter, but must be drawn to the individual's attention at some stage. This proposed inclusion follows HM Court Service consultation which identified that many debtors, instead of being encouraged to engage with creditors at an early stage, tend to ignore demands until Court proceedings are issued. The general pre-action protocol requirements are aimed at encouraging engagement. Early engagement in such matters often leads to a far more straightforward resolution, with a quicker conclusion of the issue reached for both parties as a result.
It is therefore intended to roll out pre-action protocols across the board, by expanding the requirements for parties to attempt to resolve matters without the Court's assistance. The message for all potential litigants, therefore, will be to engage with each other at an early stage, as opposed potentially to letting matters worsen, making productive engagement between the parties more difficult later. To encourage this process, of the principle in the current pre-action protocol rules that “it is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR” will not feature under in the proposed general pre-action protocol.
Finally, it should be noted that the current sanctions for non-compliance with pre-action protocols are likely to be adopted into the general pre-action protocol rules.
This article is free to republish provided the authors resource box below remains intact.