According to the Civil Procedure Rules Committee approximately 90% of professional negligence claims are resolved during the protocol period. In support of this process the Ministry of Justice recently published a revised Professional Negligence Pre-Action Protocol. Like any good revamp the Protocol has new branding – it is described as a "code of good practice". However, as has become clear over recent years, Protocols do more than provide a guide to good practice. They "have teeth" – the Courts are using them to penalise parties on costs. The revised Protocol provides significantly more options for the Courts to do so.
Aims of the New Protocol
The stated aim of the Protocol is to enable parties to prospective claims to:
- Understand and properly identify the issues in dispute;
- Share relevant information and documents;
- Make informed decisions;
- Attempt to settle the dispute settlement without proceedings or reduce the issues in dispute;
- Avoid unnecessary expense; and
- Where court proceedings cannot be avoided, support the efficient management of those proceedings.
Significant Changes to the Protocol
On the face of it, the majority of amendments introduced by the new Protocol reflect best practice already exercised by defendant professionals and their Insurers. Nevertheless, there are a number of significant shifts in emphasis, some of which will assist the defence team in applying pressure at the Protocol stage. New provisions of note include:
- Providing Protocol to Litigants in Person - Where the Claimant is a litigant in person, the proposed defendant should (in acknowledging the Preliminary Notice and the Letter of Claim) forward a copy of the Protocol to the Claimant. Claimants often "pick and choose" on issues of Protocol compliance. Supply of a copy will leave a litigant in person with less room to manoeuvre.
- Dormant Claims - If a claim has been dormant for six months from the date of the Preliminary Notice and no further correspondence has been sent by the Claimant, the Claimant should notify the professional of his intentions in respect of the claim, namely:
- whether he is intending to pursue the claim
- whether he has decided not to pursue it
- or whether he has yet to reach a decision and, if so, when the Claimant envisages making such a decision.
Whilst Claimants are unlikely to volunteer such information of their own accord, this new provision will force the issue by allowing prospective defendants to seek clarification and for their Insurers to close files in the early course.
- Letter of Claim – the Letter of Claim should include reasonable disclosure requests relevant to the dispute. In addition the onus is put on the Claimant to properly particularise their claim. For example, the explanation of how the alleged error has caused loss to the Claimant should include details of what happened as a result of the Claimant relying on the professional's act or omission and what might have happened if the professional had acted in the correct way. Whilst this appears to be a minor amendment in principle, in practice it may well have a significant impact on a Claimant's early analysis of the merits of his claim and on defence of the same in circumstances where Claimants often only turn to this issue when they are forced to do so during settlement discussions.
- Experts – The new Protocol makes clear that expert evidence is likely to be required in professional negligence actions and recognises the need for flexibility in relation to expert evidence. It identifies the need for parties to co-operate in making decisions on appropriate expert specialism, whether experts might be instructed jointly and whether reports might be shared. It also contains an overarching provision that parties should at all times have regard to the duty to restrict expert evidence to that which is reasonably required to resolve the dispute (CPR 35.1). These changes could work either way for defendant professionals. For example, early disclosure of expert evidence is not always in a professional's best interests where the defence lacks merits and in such circumstances pressure to disclose is not helpful. On the other hand, Claimants often seek to rely on the wrong type of expert or rely on expert evidence which is unnecessary, in which case this provision is likely to assist.
- Alternative Dispute Resolution – There is a new section on ADR which states that the parties should consider ADR and endeavour to agree which format to adopt. The provision then goes on to list alternatives to include mediation, arbitration, early neutral evaluation, ombudsmen schemes, and adjudication. Adjudication for non-construction related professional indemnity claims is unusual. Given the summary and non-binding nature of adjudication, it will be interesting to see if parties opt for this process and, if so, the level of success in reaching a final determination of claims without recourse to proceedings.
- Stocktake – A new "stocktake" provision has been introduced. It provides that, where the protocol procedure has not resolved the dispute, the parties should undertake a further review of their respective positions and consider the evidence to see if proceedings can be avoided and, at least, to narrow the issues between them. In reality, this provision is only likely to be helpful on assessment of costs as the losing party is likely to have to produce evidence of the review undertaken to justify issue of proceedings. However, in circumstances where a Claimant insists on issuing proceedings prematurely, a costs protective letter sent by a prospective defendant referring to this provision may give the Claimant pause for thought.
The Civil Procedure Rules allow the Courts to consider compliance with Protocols in fixing directions for the management of proceedings and in making costs orders. Over recent years the Courts have not shied away from imposing sanctions on parties who step out of line. For Insurers who invariably seek to resolve claims pre-trial on grounds of commerciality, such sanctions against non-compliant Claimants are usually of little assistance. However, with the introduction of a new Protocol and further detailed provisions leading parties down the settlement route pressure continues to mount to resolve professional negligence claims early. For the professional indemnity market that can only be a good thing.