Written by Laura Zverev, Associate in our Dispute Resolution department.
In the demanding world of the Armed Forces, military personnel often depend upon professionals such as legal advisors, accountants, or independent financial advisors to assist them in their day-to-day lives. In the event that one of these professionals falls short of the expected standard of care when carrying out work, it may be necessary to consider bringing a negligence claim to seek redress for any losses that may have been suffered as a result of that negligence. But what are the steps that need to be taken when pursuing a professional negligence claim?
A specific set of court rules need to be followed in order to successfully pursue a claim. The rules essentially set out a timetable that you need to follow in order to bring a professional negligence claim. In addition, the purpose of the rules is to allow potential claimants to try to settle their case without the need for court proceedings, by sharing information and relevant documents at an early stage, to allow the parties to understand the issues in dispute, to try and narrow the distance between the parties, hopefully resulting in a settlement.
The remainder of this article sets out the initial steps that must be taken in a professional negligence claim.
Initial steps
Preliminary notice
The claimant is encouraged to notify the professional in writing (by way of a “preliminary notice”) of their potential claim as soon as they have reasonable grounds to suspect that negligence has occurred. The notice should contain information relating to the identity of the claimant, a brief outline of the claimant’s claim against the professional and a general indication of the financial value of the potential claim (if possible).
Letter of acknowledgement
The defendant should acknowledge the Preliminary Notice in a Letter of Acknowledgement within 21 days of receiving the Preliminary Notice.
Letter of claim
The Letter of Claim sets out the real detail of the claim in stating the background of the matter, which led to the negligent act and how the negligent act has caused the claimant to suffer a loss. The Letter of Claim will also calculate the financial loss suffered as a result of the negligence.
The defendant has 21 days to acknowledge the Letter of Claim and three months from the date of the letter of acknowledgement to respond to the claim (although the parties can agree an extension to this time frame where it is appropriate to do so).
Letter of response
The professional’s response should make it clear which parts of the claim are admitted or denied, comment specifically on allegations, provide the professional’s version of events where they are different to the claimant’s events and set out the professional’s estimate of loss, if appropriate. If a defendant wants to make an offer to settle the claim, it should normally be sent at the same time as the letter of response. However, the parties will usually discuss settlement as the claim progresses.
Court proceedings
If the Letter of Response denies the claim in its entirety, and there is no offer to settle, it is open to the claimant to commence court proceedings. However, before court proceedings are started the relevant court rules make it clear that both parties should reasonably consider whether any type of alternative dispute resolution would be appropriate, which we explain below.
Alternative Dispute Resolution (ADR)
ADR should be considered throughout the pre-action stage and, once proceedings are issued, ADR should continue to be considered at each stage of the litigation. If a party is deemed to have unreasonably refused to participate in ADR, then the court does have discretion to impose penalties, which may include a reduction in costs awarded, even if a party succeeds in their claim.
Several forms of Alternative Dispute Resolution are available. However, in professional negligence claims, the main ways in which claims are settled are though mediation or in offer letters sent between the parties.
Mediation is where the parties agree to attend a meeting. Each party usually has their own room, and an independent person (known as a mediator) will also attend and usually meet and discuss the matter with each party in their own rooms. S/he will then move between the rooms, discussing the matter, with the aim of encouraging the parties to reach a settlement. This is usually achieved by highlighting the weaknesses/strengths in each parties’ case to encourage them to narrow the distance between them. The role of the mediator is not to determine the claim, s/he is appointed to try and facilitate a resolution only.
Settling the matter in letters or by telephone is as it suggests. It is open to the parties to make offers as the case progresses.
How we can help you
We understand that if you believe you have claim for professional negligence following your solicitors handling of your claim for personal injuries arising from your service in Armed Forces it is difficult to know where to start., At Hugh James, we stand committed to assisting military personnel every step of the way. By asserting your rights and ensuring professionals are held accountable, we strive to obtain deserved compensation for those who selflessly serve our nation.
