Professional Negligence Pre-Action Protocols

Step Five - Letter of Reponse and Letter of Settlement

As soon as the professional has completed his investigations (and in any event within 3 months of the Letter of Acknowledgment, unless an extension has been agreed), the professional should send a Letter of Response, or a Letter of Settlement or both.

The Letter of Response

The Letter of Response should be an open letter (as opposed to being ‘without prejudice’) and should be a reasoned answer to your allegations:

• If the claim is admitted, the professional should say so in clear terms.
• If only part of the claim is admitted the professional should make clear which parts of the claim are admitted and which are denied.
• If the claim is denied in whole or in part, the Letter of Response should include specific comments on the allegations against the professional and, if your version of events is disputed, the professional should provide his version of events.
• If the professional is unable to admit or deny the claim, the professional should explain why and identify any further information which is required.
• If the professional disputes the estimate of your financial loss, the Letter of Response should set out the professional's estimate. If an estimate cannot be provided, the professional should explain why and when he will be in a position to provide an estimate. The professional's estimate should be sent to you as soon as reasonably possible.
• Any key documents not yet exchanged should be identified, copied and enclosed.

The Letter of Settlement

Any Letter of Settlement may be an open letter, a without prejudice letter, a without prejudice save as to costs letter, or an offer made pursuant to Part 36 of the Civil Procedure Rules and should be sent if the professional intends to make proposals for settlement of all or part of the claim. It should:

• Set out the professional's views on the claim identifying those issues which the professional believes are likely to remain in dispute and those which are not. (The Letter of Settlement does not need to include this information if it is already included in a Letter of Response.)
• Make a settlement proposal or identify any further information which is required before the professional can formulate its proposal.
• Where additional documents are relied upon, copies should be provided.

Effect of Letter of Response and/or Letter of Settlement

If the Letter of Response denies your claim in its entirety and there is no Letter of Settlement, you will need to commence court proceedings if you wish to continue with the claim.

In all other circumstances, you and the professional should start negotiations, with the aim of resolving the claim within 6 months of the date of the Letter of Acknowledgment.

If the claim cannot be resolved within this period:

• The parties should agree, within 14 days of the end of the period, whether the period should be extended and, if so, by how long.
• The parties should seek to identify those issues which are still in dispute and those which can be agreed.
• If a time extension can not be agreed, it will then be up to you to commence court proceedings.

See here for Step Six - Documents