The time is ripe

The Lord Chancellor's remarks from 1999 in the Foreword to the new Civil Procedure Rules underlined what he called the widespread public dissatisfaction with the delay, expense, complexity and uncertainty of pursuing cases through the civil courts.

It was in the spirit of encouraging full, frank and early disclosure of information and achieving speedy and equitable settlements (hopefully without the need for litigation) that two new pre-action protocols were introduced at this time (for clinical disputes and personal claims).

The Lord Chancellor wants to increase the number of these protocols, so that as many cases as possible fall within their scope. For the past 18 months or so, a market body of insurers from the Lloyd's and Company Markets have been working on the new Claims Against Professionals protocol, which will come into effect on July 16.

A flexible definition
The protocol is designed for negligence claims against professionals (including allegations that the professional has not taken reasonable skill and care).

As its name suggests, this protocol will apply when somebody wants to make a claim against a professional. The protocol deliberately does not define what a professional is; instead, it encourages people to be flexible and adapt the protocol for individual circumstances. It is designed to be simple so people can understand and apply it.

The key stages of the protocol are summarised in table 2. The essential point is that the protocol pushes the claimant and the professional to put their cards on the table as early as possible once the dispute is underway:

Claimants are obliged to notify the professional as soon as they think there is a reasonable chance that they are going to make a claim. To commence proceedings, they must send a letter of claim to the professional giving full details (see table). This gives the professional and their professional indemnity (PI) insurers the information to begin investigations.

Professionals are obliged to acknowledge the claimant's notification and letter of claim within 21 days of receipt. They then have three months in which to investigate the claim, although the claimant is required to agree to any reasonable request for an extension of this period. During this period, both parties are expected to supply any information that is requested to assist the investigations.

After the investigations have been completed, the professional (or the professional's PI insurers) should write to the claimant with a letter of response and/or a letter of settlement. The letter of response is a “reasoned answer to the claimant's allegations” (see table). If a settlement is being proposed, then a letter of settlement should be sent to the claimant detailing those issues that remain in dispute and those that do not.

After the letter of response or letter of settlement, if the claim is denied in its entirety and there is no letter of settlement to leave the door open for negotiations, the claimant may commence proceedings. Otherwise, the parties should aim to conclude negotiations and reach agreement over the outstanding issues within six months from the date of the acknowledgement (see table).

If, after that time, the parties have not reached agreement, and if they can not agree a further extension, then the claimant can commence proceedings.

Possible implications of the protocol