“TAKING STOCK” OF CHANGES TO THE PRE-ACTION PROTOCOL

On 6 April 2015, changes made to the Pre-Action Protocol for Professional Negligence came into force.

Whilst the Protocol for Professional Negligence remains largely unchanged, including all key time limits, there are a few amendments to be aware of. Namely:

1. Preliminary Notice of Claim – Where the claimant is unrepresented, the professional should enclose a copy of the Protocol with its response to the Preliminary Notice of Claim (para 5.4); – If, after 6 months from the date of the Preliminary Notice, the claimant has not sent any further correspondence to the professional, the claimant should inform the professional whether they intend to pursue the claim or not (para 5.5).

2. Investigation – If the professional considers that the claimant’s Letter of Claim does not comply with the Protocol, the professional should inform the claimant and request the further information which the professional reasonably requires.

3. Documents – This new section expressly states that key documents should be provided by the parties with the claimant’s Letter of Claim and the professional’s Letter of Response, and at any other time at the reasonable request of the other party.

4. Alternative Dispute Resolution (“ADR”) – The Protocol emphasis the use of ADR to settle disputes as opposed to commencing court proceedings. – Paragraph 12.2 of the Protocol expressly refers to the following methods of ADR:

• Mediation
• Arbitration
• Early neutral evaluation
• Adjudication
• Ombudsmen schemes

5. Stocktake – This new section provides that where the procedure set out in the Protocol has not resolved the dispute, the parties should undertake a further review of their positions (para 13.1); – The parties should consider the “state of the papers” and the evidence in order to see whether proceedings can be avoided and try narrow the disputed issues.