The Professional Negligence Pre-action Protocol
Professional Negligence Pre-Action Protocol: Complete Guide (May 2025 Update)
The Professional Negligence Pre-Action Protocol is a set of steps that parties are expected to follow before starting a professional negligence claim in England and Wales. It applies to negligence claims against a wide range of professionals (solicitors, accountants, surveyors, financial advisers, etc.), except where a different specialist protocol exists (for example, separate protocols cover construction professionals and healthcare providers). The protocol’s purpose is to ensure an early exchange of information and encourage resolution of disputes without the need to issue court proceedings. Courts treat compliance with the protocol as the normal reasonable conduct before litigation, a party who ignores or flouts the protocol may face criticism or sanctions when the case reaches court. (Minor or technical breaches are usually overlooked, but significant non-compliance can have consequences.) This updated guide outlines the required procedural steps under the current protocol (as of May 2025), explains the role of Alternative Dispute Resolution (ADR), highlights case law on non-compliance, and notes proposed reforms by the Civil Justice Council. For more detailed guidance on specific types of professional negligence claims, see our pages on Solicitors’ Negligence, Surveyor Negligence, Conveyancing Negligence and Professional Negligence.
Key Steps in the Pre-Action Process
Before issuing a professional negligence claim, the claimant and defendant should engage in the following stages:
Preliminary Notice: The claimant (or their solicitor) should send a brief early notification letter to the professional as soon as they believe there is a reasonable chance of a claim. This letter simply notifies the professional of the dispute. It should identify the claimant and the professional (and any other relevant parties) and give a brief outline of the grievance. If possible, it should also indicate the approximate value or remedy sought for the potential claim. The purpose of this preliminary notice is to put the professional (and their professional indemnity insurer) on notice of a possible claim. The professional should acknowledge receipt of the notice (usually within 21 days), but at this stage no detailed response is required. (If no further action is taken for several months after a preliminary notice, the claimant should update the professional on whether the claim is still being pursued.)
Letter of Claim: When the claimant is ready to formally proceed, a detailed Letter of Claim is sent to the professional. This is a comprehensive letter (sent “open”, not without prejudice) that sets out the claimant’s case in detail. It should include: a clear summary of the facts and chronology of events leading to the dispute, the allegations of negligence (what the professional did wrong or failed to do), and an explanation of how those mistakes caused loss. The claimant should also provide an estimate of the financial loss suffered (with an explanation or calculation and any key supporting documents available). If full details of the loss cannot yet be given, the letter should say so and indicate when those details will be provided. All key documents relevant to the claim (or a list of them) should be enclosed or referenced. If an expert has been consulted, the letter should state the expert’s name and field. Importantly, the Letter of Claim should be as clear and specific as possible, because inconsistencies between the Letter of Claim and any later court statements of case can be penalised in costs. If there are multiple defendants (e.g. a solicitor and a barrister, or a firm and an individual), each should receive a separate letter, and all letters should be copied to all other parties so that everyone has the full picture. ADR in the Letter of Claim: The protocol expects the claimant to indicate whether they propose any form of Alternative Dispute Resolution at this stage. Notably, this Professional Negligence Protocol uniquely allows for an adjudication procedure if both parties agree to use it. In the Letter of Claim, the claimant should state if they wish to attempt adjudication (and can nominate an adjudicator or request an appointment by an agreed body). If the claimant does not wish to attempt adjudication or other early ADR, they should briefly give reasons (though mediation can be pursued later in any event). We discuss ADR in more detail in the ADR section below, but it is worth highlighting here that the spirit of the protocol is to consider settlement routes from the outset.
Acknowledgment of Claim: The defendant professional (or their insurer or solicitor) should acknowledge receipt of the Letter of Claim in writing within 21 days. This Letter of Acknowledgment is usually a brief note confirming that the claim has been received and is being investigated. The defendant will typically also notify their professional indemnity insurer at this point if they have not already done so. Failing to acknowledge the claim within 21 days would be a breach of the protocol, although in practise most professionals comply with this deadline.
Investigation Period (up to 3 months): After acknowledging the claim, the defendant is allowed a reasonable period to investigate and formulate a response. The protocol gives the defendant 3 months from the date of acknowledgment to investigate the allegations and respond to the Letter of Claim. During this period, the professional and their insurers should gather and review relevant documents, consult any relevant experts, and assess the claim’s merits (both on liability and the quantum of potential loss). If the Letter of Claim was missing information or not entirely clear on certain points, the defendant should request further information or documents as early as possible rather than waiting until the end of the period. The claimant is expected to promptly provide any reasonably requested information or documentation, to help the defendant understand the claim. (The protocol explicitly says both parties should supply relevant information promptly when it is requested.) If the defendant anticipates that more than 3 months will be needed (for instance, in an especially complex matter), they should request an extension in writing, giving reasons and a proposed new deadline. The claimant should agree to a reasonable extension request, as cooperation is expected and encouraged by the protocol to avoid unnecessary rushing or applications to court.
Letter of Response and/or Letter of Settlement: By the end of the investigation period, the defendant should send a substantive response. This can take the form of either a Letter of Response, a Letter of Settlement, or both. In many cases the defendant will provide two letters, one open Letter of Response, and a without prejudice Letter of Settlement offer, but they may choose to send only one of these depending on their position:
Letter of Response: This is the defendant’s formal reply to the claim, sent as an open letter (so it can be shown to the court if proceedings ensue). The Letter of Response should clearly state which allegations or parts of the claim are admitted (if any) and which are denied, with reasons and any contrary factual version the defendant asserts. It should address the claimant’s allegations point by point, and include the defendant’s account of events wherever it disagrees with the claimant’s account. If the defendant disputes the claimant’s alleged losses or calculations, the response should state the defendant’s position on the loss (e.g. a different valuation of the loss, or an explanation why the loss is not caused by the defendant). The defendant should also enclose copies of any key documents not previously provided, particularly those that support the defence or are relevant to issues in dispute. Even though this letter is not a formal Defence filed at court, it is a crucial document, if the matter proceeds to litigation, the court may compare the Letter of Response with the statements of case, and any unjustified inconsistencies (for example, a new defence raised later that wasn’t mentioned in the Letter of Response) could lead to cost penalties. Under the protocol, if the Letter of Response denies the claim in its entirety, the claimant is then free to commence court proceedings without further delay.
Letter of Settlement: If the defendant is willing to make a settlement offer (for example, they accept some or all liability or simply wish to avoid litigation), they may send a Letter of Settlement. This is typically marked “Without Prejudice”, meaning it is a confidential settlement communication that cannot be shown to the trial judge. The Letter of Settlement will set out the defendant’s proposal for resolving the dispute, such as an offer of compensation, an apology, or other remedial steps. It may also identify which issues the defendant is willing to concede and which remain in dispute, to frame the settlement discussion. Sometimes a defendant will send a combined letter that serves both as a response and makes a settlement offer; other times, these are separate documents. The claimant should respond to any settlement offer within a reasonable time. If an offer is not accepted, the parties can continue to negotiate or proceed to the next stage of the protocol.
Stocktake (Final Review): If the claim is not fully resolved after the exchange of the Letter of Response and any settlement offers, the protocol calls for a final “stocktake” by the parties. This means both sides should review their respective positions and the evidence on hand to see if litigation can still be avoided, or at least if the issues in dispute can be narrowed. At this stage, it is sensible for the parties (and their lawyers) to consider a without prejudice meeting or discussion to explore settlement one last time, especially now that each side has seen the other’s detailed arguments and evidence. The goal is to ensure that court proceedings are truly a last resort. If after a thorough review and any last negotiations the dispute still cannot be resolved, then the claimant may proceed to issue a claim in court.
Commencing Court Proceedings: Once the pre-action protocol steps have been completed (or substantially attempted) and the defendant has either denied liability or otherwise not satisfied the claim, the claimant may issue a Claim Form in the appropriate court to start formal litigation. The protocol itself does not prevent a claimant from issuing proceedings after the relevant deadlines or responses; rather, it provides a framework to encourage settlement before reaching that point. It is worth noting that compliance with the protocol is not jurisdictional, a failure to comply does not bar the claim from being issued, but the court will take the parties’ conduct in the pre-action stage into account when dealing with case management and costs in the litigation. In practise, if a party unreasonably refuses to follow the protocol, the court can impose cost penalties (see the section on non-compliance below). Therefore, both claimants and defendants should make genuine attempts to follow these steps in good faith before resorting to court.
Throughout all these stages, cooperation and communication are emphasised. Both parties should act reasonably and proportionately in exchanging information. The protocol also encourages disclosure of key documents at an early stage, each side should provide the other with the documents that are most relevant to the case (especially those they would eventually have to disclose if proceedings were issued). Additionally, the parties should discuss if expert evidence is needed and, if so, whether a single joint expert might be used or at least agree on the disciplines of experts to avoid duplication. By front-loading as much information exchange as possible and considering settlement avenues, the protocol aims to either resolve the claim without litigation or, if that’s not possible, ensure that any court case proceeds on a better-informed and narrower basis.
The Role of Alternative Dispute Resolution (ADR)
Alternative Dispute Resolution (ADR) is an integral part of the Professional Negligence Pre-Action Protocol. The protocol imposes an obligation on both claimant and defendant to consider whether a form of ADR could resolve the dispute at every stage. Litigation should be a last resort; the courts expect the parties to explore settlement options such as mediation, adjudication, or negotiation before and even after proceedings begin.
Forms of ADR: Common ADR methods in professional negligence claims include mediation (a facilitated settlement meeting with an independent mediator), without prejudice negotiations (informal discussions or exchange of offers between the parties), early neutral evaluation (getting a neutral expert’s view on the case merits), or less commonly adjudication (a more formal process where an adjudicator gives a binding decision, available under this Protocol if both sides agree, as noted above). Mediation, in particular, is frequently used in professional negligence disputes and often leads to successful settlements, sometimes on the day of mediation, or through follow-up negotiations shortly after. The parties are free to choose whatever ADR format suits them, and they can attempt ADR at multiple points (pre-action, mid-litigation, etc.).
When to consider ADR: The parties should actively consider ADR early on and throughout the protocol process. The Letter of Claim stage is one prompt for the claimant to propose an ADR method (or explain why they don’t think it’s appropriate yet). After the Letter of Response, once both sides have laid out their positions, is often an ideal time to mediate or negotiate, since the key facts and issues are on the table. The protocol’s stocktake stage explicitly encourages a final consideration of settlement options before issuing proceedings. Even if pre-action attempts at ADR fail, the court may encourage the parties to try again at a later stage of litigation.
Court expectations and sanctions: Importantly, courts have made clear that they expect parties to engage seriously with ADR and can sanction those who unreasonably refuse to do so. The courts have a wide discretion to penalise parties in costs if a party has behaved unreasonably in refusing or ignoring an ADR proposal. However, whether a refusal to participate in ADR is unreasonable depends on the circumstances of the case, factors can include the nature of the dispute, the timing of the offer, the prospects of ADR succeeding, and any reasons given for refusal. (The seminal case Halsey v Milton Keynes NHS Trust (2004) set out factors for this analysis, such as whether the refusing party believed they had a strong case, whether costs of ADR would be disproportionately high, etc., but recent developments have strengthened the encouragement of ADR.)
In practice, English courts have indeed penalised parties for ADR-related conduct. For example, in Dunnett v Railtrack Plc [2002] EWCA Civ 303, the successful defendant (Railtrack) had refused an invitation by the Court of Appeal to attempt mediation; as a result, the court made no order as to costs, meaning Railtrack, despite winning the case, was denied recovery of its legal costs because of its failure to consider ADR. In PGF II SA v OMFS Co 1 Ltd [2013] EWCA Civ 1288, a defendant who simply ignored a serious mediation offer (neither accepting nor giving reasons for refusal) was held to have acted unreasonably, and the Court of Appeal reduced that defendant’s costs recovery as a penalty. These cases illustrate that parties who stonewall ADR risk adverse consequences.
The trend in recent years has been toward even stronger court encouragement (some say enforcement) of ADR. In Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, the Court of Appeal confirmed that a court can compel parties to engage in ADR (in that case, a form of early neutral evaluation or mediation) without violating Article 6 of the European Convention on Human Rights, as long as the ADR process is proportionate and does not deny anyone access to a trial if ADR fails. Following Churchill, the Civil Procedure Rules were amended (effective October 2024) to emphasise the court’s power to mandate ADR in appropriate cases. What this means for claimants and defendants is that refusing ADR outright is increasingly risky. At the very least, if one party proposes a reasonable ADR method, the other party should respond and either agree to participate or give a solid, principled reason why they believe it would be futile. Silence or a flat refusal without explanation will put that party in a bad light before the court.
ADR and the Professional Negligence Protocol:
The protocol text itself encourages ADR at multiple points. It even includes a provision that the parties may agree to refer their dispute to adjudication, which is uncommon in most civil claims but is offered here as a potentially quicker, binding resolution mechanism if both sides consent. In practise, adjudication is rarely used in professional negligence claims (it’s more common in construction disputes), but its availability signals that the parties should be creative and flexible in finding ways to settle early. More commonly, parties will consider mediation once the Letter of Response is received, or after some exchange of information. It is not mandatory to mediate, but the expectation is that ADR is at least seriously considered. If a party is uninterested in ADR, they should document their reasons (for example, they believe the other side has no merit, or an earlier attempt at negotiation failed, etc.). Those reasons might be scrutinised later if that party seeks to recover costs.
In summary, ADR plays a crucial role in professional negligence claims. It offers a chance to avoid the time, cost, and stress of court litigation. The Pre-Action Protocol sets the stage for ADR by prompting parties to consider it early. Courts now increasingly view a lack of engagement with ADR as potential unreasonable conduct. Therefore, both claimants and defendants should always keep the door open to settlement discussions, even if they feel strongly about their case, because a failure to do so could not only miss an opportunity for a quicker resolution but also lead to financial penalties when the court awards costs.
Consequences of Non-Compliance with the Protocol
Failing to comply with the Pre-Action Protocol can have serious consequences for either party once the case goes before a judge. The Civil Procedure Rules give courts robust case management powers to penalise non-compliance with pre-action protocols. Potential sanctions for not following the protocol include: adverse costs orders (for example, having to pay the other side’s costs, or losing the right to recover one’s own costs, for part of the litigation), interest penalties on damages, or even, in extreme cases, staying the proceedings until the protocol steps are completed. The court’s overarching approach is to encourage compliance but also to ensure that one party isn’t unfairly disadvantaged by the other’s failure to engage in the pre-litigation process.
Several English cases illustrate how courts have imposed sanctions for protocol breaches:
Webb Resolutions Ltd v Waller Needham & Green (a firm) [2012] EWHC 3529 (Ch): This case involved a claimant mortgage lender who failed to provide documents requested by the defendant solicitors under the Professional Negligence Protocol. The claimant sent a Letter of Claim, and the defendant asked for 12 categories of documents to assess the claim and prepare a Letter of Response. The claimant unreasonably refused to disclose most of those documents pre-action, insisting none would be provided until the defendant admitted liability. The defendant was forced to defend the claim with incomplete information; ultimately, the case settled with the defendant accepting a Part 36 offer beyond the 21-day period. When it came to costs, the High Court took a dim view of the claimant’s conduct. The judge noted that the aim of the Protocol is early information exchange so that claims can be investigated and possibly resolved without litigation, an aim the claimant had thwarted. He found the claimant had breached the letter and spirit of the protocol by refusing reasonable disclosure, which justified departing from the usual costs rule. Normally, because the defendant accepted the settlement offer late, the defendant would have had to pay the claimant’s costs up to the acceptance date. Instead, the court penalised the claimant: it allowed the claimant to recover costs only up to the initial 21-day offer period, but denied the claimant any costs for the prolonged period caused by its non-compliance, and moreover ordered the claimant to pay the defendant’s costs for that period. In effect, the claimant won the case (the defendant paid the settlement sum) but came out behind on costs because of the failure to follow the protocol. This was a stark warning that refusing to cooperate with reasonable pre-action requests can be very costly, the court explicitly stated that had the claimant acted reasonably and provided the documents, the dispute might have been resolved much earlier and with far less expense.
Dunnett v Railtrack Plc [2002] EWCA Civ 303: (Discussed above in the ADR section.) Here, a party’s unreasonable refusal to consider ADR, effectively a breach of the spirit of the protocol’s ADR encouragement, led the Court of Appeal to deny that party its costs despite winning on the merits. This signaled early on that compliance with the spirit of the protocol (in this case, willingness to engage in alternatives to litigation) could influence costs outcomes.
PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288: Although not a pre-action scenario (it occurred during litigation), this case is often cited in the context of protocol compliance because it underscores the expectation of reasonable conduct regarding ADR. The defendant’s failure to respond to an invitation to mediate was deemed an unreasonable failure to engage, and as a sanction the court deprived the defendant of some of its costs that it would otherwise have been awarded. This reinforces that a party who ignores ADR (which the protocol obliges parties to consider) can be penalised.
Other potential sanctions: Courts can also issue orders to stay proceedings if the protocol steps have not been followed. For instance, if a claimant rushes to court without sending a Letter of Claim or giving the defendant a chance to respond, the defendant can ask the court to stay (pause) the case until the protocol is complied with. The court may also make costs orders at interim hearings if, say, one party’s non-compliance caused unnecessary applications or delays. Generally, the party at fault will be made to bear the extra costs caused by their non-compliance.
The guiding principle is that the protocol is meant to be taken seriously, but it’s not a straitjacket. Parties should substantially comply and act reasonably. If one party clearly hasn’t, the court will ask: has this failure impeded the resolution of the case or significantly affected the conduct of litigation? If yes, a sanction will likely follow to ensure justice. Conversely, the court will not usually penalise technical or inconsequential breaches. For example, if a Letter of Response was one week late but no real prejudice was caused, a court might not penalise that.
To avoid any issues, both claimants and defendants should document their compliance: keep proof of letters sent, acknowledgments received, information exchanged, and ADR offers made. If the other side is not engaging, it is wise to gently remind them of their protocol duties in correspondence. Ultimately, complying with the Pre-Action Protocol is not just a formality, it can significantly affect the outcome of the case in terms of costs and tactical position. Courts increasingly have little sympathy for parties who bypass these pre-action requirements without a very good reason (for instance, a truly urgent injunction or a looming limitation deadline might justify not completing the steps, but even then the party should comply as far as possible).
In summary, non-compliance can backfire. It can delay the progress of the claim (if the court stays proceedings) and almost certainly will hit the non-compliant party in the pocket. On the other hand, full compliance and cooperation with the protocol puts a party in the best position to either settle favorably or, if it goes to court, to recover their costs and be viewed sympathetically by the judge.
Proposed Reforms by the Civil Justice Council (as of May 2025)
As of May 2025, there are proposed reforms to the Pre-Action Protocol system (including the Professional Negligence Protocol) that have been recommended by the Civil Justice Council (CJC) but not yet implemented. The CJC conducted a review of all pre-action protocols starting in 2021 and published a final report with recommendations in late 2024. It is important to note that these are proposals and have no legal force yet, any changes would need to be approved and put into effect (for example, by the Civil Procedure Rule Committee updating the practise Directions). Here is a summary of the key proposed reforms relevant to professional negligence claims:
Emphasis on ADR and Sanctions for Non-Engagement: The CJC recommends strengthening the wording of the Professional Negligence Protocol to underscore the importance of ADR and to warn of consequences for not engaging. In particular, it is proposed that the protocol be amended to explicitly refer to the court’s powers to penalise parties in costs or stay proceedings if they do not engage in ADR. This would mean the protocol itself will spell out that ignoring a request to mediate or otherwise failing to consider ADR could lead to cost sanctions, putting parties on clearer notice of what the case law (as discussed above) already dictates. The proposals also include expanding the protocol’s explanation of the various ADR methods available, to educate parties (especially lay clients) on their options. This proposed change aligns with the wider trend (post-Churchill) of integrating ADR more formally into dispute resolution procedure.
No Change to the Basic Timeframes: During the CJC review, there was discussion of potentially shortening the time for a defendant to respond to a Letter of Claim (some suggested aligning it with a proposed general protocol of 14 days acknowledgment + 28 days response for simpler cases). However, for professional negligence claims, which often involve complex issues and insurers, the consensus was to retain the current time limits. The CJC’s final recommendation is that the defendant should still have 21 days to acknowledge and 3 months to respond to the Letter of Claim, as this timeframe “has worked well” and allows sufficient time for proper investigation. Both claimant and defendant stakeholders felt that these periods strike the right balance, given professional negligence cases can require input from multiple sources (insured professionals, indemnifiers, experts, etc.). Thus, no dramatic change in timings is proposed.
Introduction of a Structured Stocktake Procedure: The current protocol’s “stocktake” stage (the final review before issuing proceedings) has been criticised as too vague or “woolly,” and often glossed over by parties. The CJC recommends introducing a more structured stocktake process. Under the proposal, parties would be under a clear obligation to co-operate in narrowing the issues and produce a stocktake report summarising what has been agreed and what remains in dispute. This report could then be provided to the court if proceedings are issued, to assist in case management. The idea is to ensure both sides seriously evaluate settlement prospects once all pre-action steps are done, rather than automatically moving to litigation. By formalising this step, the hope is that some cases might settle at the door of the court (or at least require fewer court resources because the issues have been narrowed). The CJC acknowledged the existing stocktake in the Professional Negligence Protocol but wants to give it more teeth and clarity.
New General and Specialist Protocols: While not specific to professional negligence, the CJC has proposed some structural changes to the overall landscape of pre-action protocols. One proposal is a new General Pre-Action Protocol for simpler/low-value cases (to cover matters not in a specific protocol). Another is a new protocol for Business and Property Court multi-track claims. The latter could overlap with some professional negligence claims (for example, a very large claim against a professional that falls in the Business & Property Courts). The CJC has suggested that if a new Business & Property Courts protocol comes into force, it would not replace the Professional Negligence Protocol where that protocol applies, except possibly for the largest cases, and that lower-value cases would follow the general protocol. In any event, these broader reforms are still under consideration. For now, professional negligence claims of all sizes continue to use the existing protocol.
No “Good Faith” certification: An idea floated in earlier consultations was to require parties to certify that they had attempted to negotiate/settle in good faith (perhaps around 8 weeks after the Letter of Response). This idea was effectively a way to enforce engagement with settlement discussions. However, the final CJC recommendations did not adopt a mandatory good-faith negotiation requirement for the Professional Negligence Protocol. Instead, the focus shifted to the ADR mandate and court powers mentioned above, especially in light of the Court of Appeal’s guidance in Churchill. The view was that explicitly empowering courts to order ADR and penalise non-cooperation is a more practical way to encourage good behaviour, rather than a tick-the-box good faith declaration.
These proposals were handed to the Civil Procedure Rule Committee and the Master of the Rolls in late 2024. Implementation will require drafting and approval of new practise Direction language. As of May 2025, the proposed reforms remain under review, we have not yet seen them translated into the Civil Procedure Rules or official protocol updates. It is possible that during 2025 the Rule Committee will publish updates to the pre-action protocols to enact some or all of these changes, but until that happens, practitioners and clients should continue to follow the current protocol (as outlined in this guide). We will update our guidance if and when these reforms are formally adopted.
Practical takeaway: For now, the protocol’s requirements are as described in the earlier sections. But parties should be aware of the direction of travel: even greater emphasis on ADR and accountability for protocol compliance. It would be prudent for those involved in professional negligence disputes to already start behaving in line with these anticipated changes, for example, by proactively suggesting mediation and by diligently cooperating in the stocktake phase, since courts are increasingly expecting such conduct anyway.
Carruthers Law specialises in professional negligence claims. If you believe you have suffered loss due to the actions or omissions of a professional, we invite you to contact us today. You can reach us by telephone on 0151 541 2040 or by email at info@carruthers-law.co.uk. Alternatively, you may use our online contact form. For more detailed guidance, please refer to our related pages on Solicitors’ Negligence, Conveyancing Negligence,Surveyors’ Negligence, Architects Negligence and Accountants’ Negligence.