Professional negligence protocol to launch
29 Jun 07
Pre-action agreement designed to increase chances of settlement
People claiming compensation for professional negligence could face a less stressful time from next week, as a voluntary pre-action protocol agreed between the Law Society of Scotland and the Forum of Scottish Claims Managers takes effect.
The agreement, designed to put in motion a process of negotiation with time limits for responses, prior to any court action being raised, is modelled on a similar protocol for lower value personal injury claims introduced in January 2006.
Any claim intimated after 1 July against a professional person, apart from cases of medical negligence, for less than £20,000 should go through this procedure in the first place. Higher value cases can also follow that route if parties agree.
The procedure involves the claimant's solicitor sending a detailed letter of claim, to which the insurer involved should reply within 14 days of receipt. If it is agreed that the voluntary protocol applies, the insurer has three months to investigate the claim and should then provide a reasoned response stating whether or not the claim is admitted, and/or settlement proposals.
Unless the letter of response denies the claim in its entirety and there is no letter of settlement, the insurer and the claimant’s solicitor should then enter negotiations with the aim of concluding these within six months of the date of the insurer's first letter. The six month period can be extended by agreement, but otherwise if there is no settlement by then, the protocol ceases to apply, leaving the way open to court proceedings.
The agreement also states that parties should consider whether some form of alternative dispute resolution (ADR) procedure would be more suitable than litigation. They can agree at any stage to take the dispute (or any disputed matter) to mediation or some other form of ADR.