In this blog we consider a question most clients wants to know when embarking on their professional negligence claim: how long will my claim take?
Placing an exact time on how long a claim will take, would inevitably require the ability to predict the future, as the length of time will depend on several factors such as the evidence available, the requirement to instruct experts and your opponent’s stance to either settle or defend your claim.
However, looking at the processes and steps your solicitor is required to take, will hopefully help you to consider how long your claim may last.
Once your solicitor has considered your claim and advised you to pursue the same, they will then follow a protocol that has been set down in legislation for your opponent and your solicitor to follow. The protocol has been put in place with a view to both you and your opponent attempting to resolve the claim without the need to go to court.
The Professional Negligence Pre-Action Protocol starts by your solicitor sending a Preliminary Notice to your opponent, which is usually a letter informing your opponent that you are bringing the claim against them, with a brief outline and an indication of the value. Usually disclosure of evidence will be requested from your opponent at this early stage.
Your opponent should acknowledge the Preliminary Notice in writing to your solicitor within 21 days of receipt of the notice.
Once your solicitor has obtained all the necessary evidence to pursue your claim (which could involve obtaining records or evidence from a variety of different sources), your solicitor will then send a Letter of Claim to your opponent, setting out your claim, advising on the instruction of any experts if applicable and setting out the value of your claim. The letter would usually invite your opponent to settle your claim at an early stage.
Your opponent should acknowledge the Letter of Claim in writing to your solicitor with a Letter of Acknowledgment within 21 days of receipt.
Your opponent will then have a further 3 months from the date of their Letter of Acknowledgment to consider your claim and provide their Letter of Response or Letter of Settlement (or both).
If your opponent sends a Letter of Settlement and makes an offer to settle your case that you accept, the claim will come to an end.
If your opponent sends a Letter of Response and also sends a Letter of Settlement, the protocol requires the parties to attempt to negotiate a settlement within 6 months from the date of your opponent’s Letter of Acknowledgment, with a view to the claim settling at this stage. If the claim is not settled within the 6 month time period, the parties should agree within 14 days of the end of the time period whether it should be extended.
If the claim does not settle at the above pre-action stage or if your opponent sends a Letter of Response denying liability in its entirety and does not send a Letter of Settlement, it will then be open to you to commence court proceedings against your opponent.
The time limits in the pre-action protocol can be extended by agreement between the parties if more time is required to comply with the protocol steps, however if the matter proceeds to court, the court may penalise a party on costs if they fail to comply with the protocol at this initial stage.
If you claim is settled in the pre-action protocol period, you can expect your claim to last anywhere from 6-12 months (or more) from initially instructing your solicitor to settlement.
If your claim has not settled in the pre-action protocol period and you have been advised by your solicitor to pursue court proceedings against your opponent (subject possibly to receiving advice and the backing of a barrister who will likely act on your behalf in any subsequent hearings and prepare your claim documents), the court process will start with your solicitor issuing your claim at court.
Your opponent will then be served (either by the court or by your solicitor) with your claim documents and your opponent will be required to file their Defence or an acknowledgment within 14 days of the date your claim was served on them. If your opponent files and acknowledgment they will have 28 days from the date your claim was served on them to file their Defence.
After your opponent has filed their Defence, the court will allocate your claim to a ‘track’ dependant on the claim value and complexity as follows:
- Small Claims Track – Generally for lower value and less complicated claims with a value of up to £10,000, with the court hearing expected to last no more than 2 to 3 hours.
- Fast Track – This track is for claims worth more than £10,000 but less than £25,000, with the court hearing expected to last no more than 1 day.
- Multi Track – This track is for claims worth more than £25,000, with the court hearing expected to last more than 1 day.
If your professional negligence claim is worth less than £10,000 or less than £25,000 but is more complexed or requires more than one day for the court to consider the claim, which may involve multiple witnesses or experts giving evidence etc, the claim will more than likely be allocated to the Multi Track.
Dependant on which track your claim is allocated to will certainly impact on the length of time your claim takes to get to a final court hearing.
For example, claims allocated to the Small Claims Track could be resolved at a final court hearing within a few months of the claim being issued, as the court will set down limited directions for the parties to follow prior to a final court hearing.
Whereas claims allocated to the Fast Track or Multi Track could take up to a year or more from being issued to reaching a final court hearing. This is because to manage Fast Track or Multi Track claims, the court will set down more detailed directions for the parties to follow in terms of exchanging evidence and documents relied upon, instructing experts, attending case management hearings, etc all along the course of the process leading up to a final court hearing.
If you claim is concluded at a final court hearing on the Fast Track or Multi Track, you can expect your claim to last anywhere from 1-2 years (or more) from the date you initially instructing your solicitor.