Claimants who think they have a good case are often surprised that their claim seems to be taking so long. After all, professional negligence claims are straightforward, aren’t they? In fact, professional negligence claims are far from straightforward and it is not easy for the solicitor who has conduct to say how long the claimant’s case will take because it will very much depend on the attitude of the defendant’s professional indemnity insurers.
Before insurers even have to consider your claim, professional negligence solicitors will have to write a detailed letter of claim, setting out the basis of the claim which (if correctly drafted) should set out in chapter and verse:
- The full background to the claim and the scope and terms of the retainer between the claimant and the defendant professional;
- Set out how the terms of the retainer were breached, detailing each separate allegation of breach of duty or negligence, supported by any expert evidence;
- Full details of the claimant’s financial losses, supported by evidence
- How it is alleged that the defendant’s act or omission caused or substantially contributed to the claimant’s losses (sometimes called the operative cause).
Of course, many professional negligence claims come to the solicitor with an extensive antecedent history, and depending on complexity, professional negligence solicitors could spend 20 or more hours just drafting the Letter of Claim. Your solicitor cannot be expected to be familiar with the professional standards expected of every given profession and even if he is, he is unlikely to be able to give an opinion acceptable to the court concerning the defendant’s standard of work.
Thus, he will normally have to instruct an expert to give that opinion. The expert instructed should be familiar with preparing expert reports for use by the court and will be someone who has himself been a professional employed in the Defendant’s profession.
He will be instructed to comment on whether the Defendant has, in respect of each allegation of negligence, fallen below the standard to be reasonably expected of a professional man or woman giving advice on the same matter. He will also have to give an opinion as to whether the professional acted (or omitted to be act) in a way that no reasonably competent professional, giving advice in the same area of expertise, would have acted.
Professionals do not have to be perfect; they are judged by the standard to be expected of other reasonably competent professionals advising on the same matter. Once professional negligence solicitors have drafted the letter of claim and it has been approved by you, it will be sent to the defendant professional, enclosing a copy for his insurers.
Upon receipt, the defendant (or his insurers), will have 21 days in which to acknowledge the letter of claim, and will then have a further 3 months from the date of acknowledgement to investigate and respond to the allegations made by the claimant. Professional indemnity insures employ solicitors who specialise in defending professional negligence solicitors’ claims and they fight hard for their insured clients.