pre-action protocol Archives

Pre-Action Protocols – What the Court Expects Before a Claim Is Issued

Posted on 15 Apr 202615 Apr 2026 by Ruby Keeler-Williams

A claim does not become ready to be issued at court simply because a party has a complaint. Before proceedings are issued, the Civil Procedure Rules (CPR) expect parties to take certain steps such as exchanging information, identifying the issues and considering whether the matter can be resolved without litigation. This is referred to as the ‘pre-action’ stage of litigation.

What should occur in the pre-action stage of litigation is set out in the Pre-Action Protocols annexed tothe CPR. There are specific Pre-Action Protocols for different types of dispute. Where no specific pre-action protocol applies, parties should follow the Practice Direction Pre-Action Conduct and Protocols (PDPACP). It sets out the conduct the court would normally expect before proceedings are commenced and the consequences that may follow where parties ignore that framework.

That point is sometimes underestimated. Parties can become overly focused on whether a claim can be issued and lose sight of whether it should be issued yet. A weak pre-action approach can create costs risk before the court has considered the merits. It can also make the later conduct of the case more difficult than it needed to be. That is one reason the rules place so much emphasis on the period before issue.

This article looks at the pre-action framework with particular focus on the Practice Direction – Pre-Action Conduct and Protocols. It explains why a party cannot simply move from complaint to proceedings without first engaging with the dispute in the way the court expects, how the Practice Direction fits alongside the CPR and why certain categories of claim, including professional negligence claims, are subject to their own specific protocols. It also considers why compliance matters in practice and what may follow where parties fail to take the pre-action stage seriously.

This is the second article in a series of articles on the CPR. The first article, which is an introduction to the CPR, can be read here.

Why the pre-action protocols exist

The purpose of the pre-action protocols is to ensure that the parties know enough about the dispute to make sensible decisions before a dispute reaches court. The PDPACP says that before commencing proceedings the court will expect parties to have exchanged sufficient information to understand each other’s position, made decisions about how to proceed, tried to settle the issues without proceedings, considered a form of ADR, supported efficient management of those proceedings that cannot be avoided and reduced the costs of resolving the dispute.

Those objectives reflect the wider philosophy of the CPR. The court is concerned with fairness, proportionality and efficient resolution. A dispute that has been properly defined before issue is easier for the court to manage after issue. The parties are more likely to understand what is actually in dispute, the pleadings are more likely to reflect the real issues and the scope for unnecessary applications is reduced.

That is the practical reason the rules do not treat pre-action conduct as a matter of etiquette. The pre-action stage is part of the court’s attempt to ensure that litigation is a last resort rather than a first reaction. Parties should consider whether negotiation or some other form of ADR might enable them to settle without proceedings and they should proceed proportionately, bearing in mind the costs that may be involved, the complexity of the matter and the need to act at reasonable speed.

The relationship between the PDPACP and specific protocols

There is not one universal pre-action protocol. The specific pre-action protocols for particular categories of dispute are:

Resolution of Package Travel Claims;
Construction and Engineering Disputes;
Debt Claims;
Media and Communications Claims;
Personal Injury Claims;
Resolution of Clinical Disputes;
Professional Negligence;
Judicial Review;
Disease and Illness Claims;
Housing Conditions Claims (England);
Housing Disrepair Cases (Wales);
Possession Claims based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property;
Possession Claims by Social Landlords;
Low Value Personal Injury Claims in Road Traffic Accidents;
Claims for Damages in Relation to the Physical State of Commercial Property at Termination of a Tenancy (the ‘Dilapidations Protocol’);
Low Value Personal Injury (Employers’ Liability and Public Liability) Claims; and
Personal Injury Claims below the Small Claims Limit in Road Traffic Accidents (“The RTA Small Claims Protocol”)

The PDPACP applies where no other approved pre-action protocol governs the dispute. It also provides the general background against which pre-action conduct is assessed.

For example, a lawyer dealing with a professional negligence claim should not reach automatically for the PDPACP . There is a dedicated Pre-Action Protocol for Professional Negligence, just as there are specific protocols for clinical disputes and personal injury. Where a specialist protocol exists, that is the starting point.

The reason for that structure is that different categories of case raise different practical problems. A clinical negligence dispute, for example, is unlikely to be managed sensibly by exactly the same pre-action steps as a construction dispute or a debt claim.

The underlying expectations remain across the different protocols, specifically a focus on clarity, early exchange of information, proportionality and a genuine attempt to avoid unnecessary proceedings.

The Letter of Claim

In most disputes, the letter of claim is the point at which the case takes on proper shape. It is often the first structured presentation of the claim and the first real test of whether the dispute has been thought through.

The PDPACP requires enough information to be contained within the letter of claim for the recipient to understand the claim being advanced and to respond meaningfully. In practice, that usually means identifying the factual basis of the claim, the broad legal footing on which it is put, the remedy sought and the documents that matter or are requested. The aim is to put the other side in a position where they can see the case they are being asked to meet.

A weak letter of claim often causes difficulty later. If the letter of claim is too vague, it will leave the recipient guessing as to the issue in dispute. A letter of claim that is too aggressive tends to provoke a defensive response and does little to narrow the issues between the parties. In many cases, the pre-action stage is the last opportunity for the tone of the dispute to be set without the pressure of sunk costs and court timetables.

The Letter of Response

The duties at the pre-action stage do not fall on claimants alone. A defendant’s response to the letter of claim is equally important.

The point of the letter of response is not simply to deny liability and put the claimant to proof. A proper letter of response engages with the case advanced and says, with sufficient clarity, what is admitted, what is denied, what documents are relied on and whether some form of resolution is proposed.

A response that does not engage with the issues can be costly later. Delay or silence is rarely helpful. If the other side has enough information to put its case properly and the response fails to engage with it, that can affect how the court later views reasonableness and costs. A party that has behaved unreasonably before issue may find that the conduct returns later in the form of costs consequences or adverse case management decisions.

Pre-Action ADR

The Practice Direction expects parties to consider ADR before proceedings are commenced. That reflects both the wording of the PDPACP and the emphasis within the CPR on resolution at proportionate cost. Parties are expected to consider whether some form of negotiation, mediation or other ADR may assist in resolving the dispute without proceedings.

That will not be appropriate in every case, as some disputes require urgent relief, or cannot be resolved without a determination from the court. Sometimes, parties are so entrenched in their position that early engagement would achieve nothing. The decision not to pursue ADR should always be a considered one, as the pre-action stage is the point at which the parties have flexibility to resolve matters sensibly, whereas once proceedings have been issued, costs have accumulated and each parties position will have inevitably hardened.

ADR is still sometimes misunderstood as a sign of weakness or an indication that a party is not confident in its case. In practice, early ADR can be commercially sensible, as it can reduce cost, preserve relationships and narrow disputes even where it does not produce full settlement. The court’s concern is whether the possibility of ADR was considered seriously and proportionately, not just whether settlement was reached.

Why compliance with the pre-action protocol matters

The court can and does take pre-action conduct into account when deciding costs and case management, as set out in Paragraphs 13 to 16 of the PDPACP.

The court may order a party who has failed to comply to pay some or all of the other side’s costs, deprive a successful party of some of its own costs, order interest consequences, or stay proceedings until the steps that should have been taken have been taken. The court may also take account of whether parties acted reasonably in exchanging information and documents relevant to the dispute.

Nicole Chapman v Tameside Hospital NHS Foundation Trust

A useful illustration is Nicole Chapman v Tameside Hospital NHS Foundation Trust, an unreported County Court decision from 15 June 2016, which has nevertheless been discussed because of the costs consequences that followed.

The case concerned a personal injury claim. The claimant eventually discontinued after documents came to light which, if produced at the pre-action stage as they should have been, would have shown that the claim ought not to proceed.

The court ordered the defendant to pay the claimant’s costs despite discontinuance, reversing the usual position, because the defendant had failed to comply with its pre-action disclosure obligations and that failure had caused unnecessary proceedings and costs. This is a good example of the cost risks created by poor pre-action conduct.

Cundall-Johnson and Partners LLP v Whipps Cross University Hospital NHS Trust

The same general point appears in Cundall-Johnson and Partners LLP v Whipps Cross University Hospital NHS Trust [2007] EWHC 2178 (TCC). That case is more often cited for Jackson J’s discussion of whether the professional negligence protocol or the construction and engineering protocol applied, but the wider point on pre-action protocols is important.

Jackson J examined which protocol properly governed the dispute, considered the parties’ conduct against that background, and granted a stay so that the correct pre-action process could be followed. The judgment is a useful reminder that pre-action protocols affect the management and timing of the proceedings themselves.

That is especially relevant to professional negligence work. A solicitor who misidentifies the applicable protocol may create difficulties that are entirely avoidable. The court requires the right pre-action framework to be used so that the dispute is narrowed and managed properly before issue.

What happens where parties do not comply

If a party does not comply, the court may stay proceedings to force compliance, or penalise a party in costs, or deprive a successful party of costs it might otherwise have expected to recover.

The court does not require every step to be perfect, but will consider whether the parties acted reasonably, proportionately and in a way that gave the dispute a fair chance of resolution before proceedings became inevitable.

Conclusion

If you are considering a claim, or have received a letter of claim, early advice can make a big difference to how the dispute develops.

If you would like advice on the pre-action stage of a dispute, such as the applicable protocol, the drafting of a letter of claim or response and the practical steps to take before proceedings are commenced, please contact us today.

Professional Indemnity Insurance in Professional Negligence Claims

Posted on 13 Aug 202414 Jan 2026 by Ruby Keeler-Williams

Introduction

Professional indemnity insurance (PII) is a type of liability insurance held by professionals, which covers them in relation to negligent acts or omissions.

For Claimants, the existence of PII can be the difference between a successful financial recovery and a pyrrhic victory, as without PII the professional may lack the resources to personally satisfy the judgment.

In this article I will set out the importance of PII in professional negligence claims, examining how it influences the litigation process, impacts settlements, and what Claimants should be aware of when dealing with insured professionals.

What is Professional Indemnity Insurance?

Professional indemnity insurance is a type of liability insurance designed to protect professionals against claims made by their Clients for damages arising from any negligent acts, errors, or omissions. This insurance is particularly important in professions where mistakes can lead to significant financial loss for clients, such as law or accounting.

In many professions, PII is a regulatory requirement. Solicitors in England and Wales must maintain a minimum level of PII under the SRA Indemnity Insurance Rules. At the time of writing, these limits are at least £3 million where the insured firm is a relevant recognised body or a relevant licensed body, and in all other cases, at least £2 million.

Other professional bodies also impose the requirement of PII upon professionals, including accountants, financial consultants, surveyors, engineers and healthcare professionals. The reason for this is to protect the public by ensuring that professionals can cover the cost of any claim.

The Impact of PII on Professional Negligence Claims

Whether or not a professional holds PII can influence the viability of a professional negligence claim. For Claimants, PII offers financial certainty as it ensures that, even if the professional themselves are unable to meet the claim from their own resources, the insurer will step in to cover the liability. This is particularly important in high-value claims, where the potential damages could far exceed the professional’s personal assets – without PII, this would result in a pyrrhic victory for the Claimant.

Furthermore, the existence of PII often facilitates quicker and more efficient settlements. Insurers, who are commercial entities and can be keen to avoid the costs and uncertainties associated with litigation, may be more inclined to settle claims early, given they can objectively assess the events that have led to the litigation and the commercial merits of challenging the claim – provided they believe the claim is justified and falls within the terms of the policy. This can lead to a more streamlined process, sparing both parties the time, expense, and stress of a court trial.

The Role of Insurers in Litigation

Insurers often play a key role in the defence of professional negligence claims. Once a claim is made, it is typically the insurer who assumes control of the defence, appointing solicitors and experts to investigate the claim and determine the best course of action. This means that the claim is typically run by a party that was not involved in the events that have led to the action. This can significantly shape the litigation strategy, as insurers will often seek to objectively assess the merits of the claim with a view to minimising their exposure to adverse costs.

Insurers may also influence whether a case goes to trial or is settled out of court. Their decision will often be the result of assessing strength of the evidence, the potential costs of litigation, and the terms of the insurance policy. In some cases, insurers may push for settlement to avoid the unpredictability of a court judgment and the risk of adverse costs, while in others, they may choose to litigate if they believe the claim lacks merit.

The involvement of insurers can be seen in the case of Standard Life Assurance Limited v Oak Dedicated Limited and others [2008] EWHC 222 (COMM), which demonstrates the insurer’s right to control the defence and settlement of a claim. It was held that an insurer is not obliged to cover a settlement made by the insured without the insurer’s consent. This case demonstrates the importance for insured professionals to obtain insurer approval before settling, as failure to do so can lead to a denial of coverage and personal liability. Claimants should be aware of this when conducting settlement negotiations.

Disclosure of Insurance Details During Proceedings

A key strategic consideration for litigators running professional negligence claims is the disclosure of insurance details. For certain professions, there may be a duty to disclose detail. An example of this is Solicitors are required under Rule 9.2 of the SRA Indemnity Insurance Rules to provide to a Claimant or any other person with a legitimate interest: the name of their participating insurer, the policy number and the address and contact details of the insurer.

Additionally, in relation to insolvent Defendants only, it is possible to obtain information regarding a policy via the Third Parties (Rights against Insurers) Act 2010.

Outside of these provisions, it can be a challenge to force disclosure of information. In the case of Peel Port Shareholder Finance Company Ltd v Dornoch Limited, it was held that the court should only consider ordering disclosure of a solvent insured’s insurance details in exceptional circumstances. This can lead to difficulties in obtaining disclosure of the insurance details at a pre-action stage (such as via an application under CPR 31.16 as in this case), which creates uncertainty for the Claimant.

While there is no general obligation for a Defendant to disclose their limit of indemnity, there are situations where such disclosure may be advantageous. For example, if a Claimant knows that a Defendant is insured, it can provide reassurance that any judgment will be satisfied, potentially leading to a more aggressive approach to the litigation strategy or a higher settlement demand. In contrast, disclosure of a limit that is substantially below the value of the claim may lead to the merits of pursuing a claim being re-assessed, which could be advantageous for the Defendant/insurer.

In practice, disclosure of insurance details might be volunteered to encourage a Claimant to accept a reasonable offer, knowing that the insurer has the funds to pay the settlement and to pursue the litigation. However, there are also risks in disclosing such information, as it may lead to inflated demands. Ultimately, the approach differs between different insurance companies.

The Consequences of pursuing Uninsured Professionals

Making a claim against an underinsured or uninsured professional is one of the most significant risks for Claimants in cases of professional negligence. In the event that a professional does not have sufficient insurance, the Claimant may be successful in getting a judgement only to discover that there are insufficient or no assets to cover the award. This can be particularly damaging because it effectively renders the judgement financially meaningless.

To mitigate this risk, Claimants should conduct thorough due diligence before pursuing a claim. This involves requesting confirmation of the insurance coverage or checking with professional regulatory bodies that may hold relevant information. However, as discussed above, the insurer does not always have to disclose the limit of indemnity.

Policy Exclusions and Limitations

While PII provides protection, it is not a guarantee of coverage. PII policies often contain exclusions and limitations that can significantly affect recoverability. Common exclusions include acts of fraud, criminal behaviour, and deliberate breaches of professional codes of conduct. Additionally, some policies may exclude coverage for claims arising from certain high-risk activities or may impose sub-limits on specific types of claims.

It is vital that Claimants understand these exclusions, as they establish the extent of coverage and the likelihood of a favourable outcome. The terms of the PII policy must be thoroughly reviewed in order to identify any potential obstacles to recovery. As this can result in drawn-out legal disputes over the interpretation of policy terms, this review is particularly crucial in cases where the insurer raises exclusions as a defence against liability.

In the case of Zurich Professional Ltd v Karim [2006] EWCH 3355 (QB), the insurer Claimant obtained a declaration that the claims made under the Defendant solicitors’ professional indemnity policy arose “from dishonest or fraudulent acts or omissions committed or condoned by the insured” and accordingly they were not obliged to indemnify the insured.

Insurers’ Right of Subrogation

Subrogation is a fundamental principle that allows an insurer to step into the shoes of the insured after payment of a claim and pursue recovery from third parties who may be responsible for the loss. In professional negligence, subrogation rights can be particularly relevant when multiple professionals are involved in a matter, and one professional’s negligence contributes to the loss.

For example, if an insurer pays a claim on behalf of a negligent solicitor, they may seek to recover those funds from another party, such as a barrister who advised, as they may be liable for the same loss. Subrogation ensures that the loss falls on the party responsible for the negligence, rather than reverting to the insurer or the insured professional.

Conclusion

Professional indemnity insurance is an important consideration in any professional negligence. For professionals, PII offers protection against the financial consequences of a negligence claim, while for Claimants, it provides a source of funds to satisfy a judgment or settlement. However, the presence of PII also creates difficulty for litigators, including issues related to policy exclusions, the role of insurers in litigation, and the strategic considerations surrounding disclosure and settlement. Understanding these factors is crucial in any case.

If you are considering or are involved in a professional negligence claim, understanding the role of professional indemnity insurance is essential. Our experienced team is here to guide you through the complexities of PII and provide tailored advice for your specific case. Contact us today.

Understanding the Procedural Steps: the Pre-Action Protocol for Professional Negligence

Posted on 25 Jun 202414 Jan 2026 by Ruby Keeler-Williams

The Protocol

Our team has extensive experience in claims for professional negligence, including claims against solicitors, accountants, surveyors, trustees and other professionals and we have been successful in obtaining many multi-million-pound recoveries for Our Clients.

The Pre-Action Protocol for Professional Negligence applies to these claims and covers claims for negligence against all professionals, except those in the construction or healthcare sectors, or those concerning defamation.

The primary purpose of the Protocol is to promote the settlement of claims by ensuring that both parties fully understand the nature of the claim alleged, the evidence supporting the claim, and the defences of the Defendants. By encouraging this early exchange of information, the Protocol aims to reduce the number of disputes that escalate to court, saving time and costs for all involved.

Importance of Complying with the Pre-Action Protocol

Before looking at the Protocol itself, it is important to set out why it is vital that parties comply. Compliance with the Pre-Action Protocol for Professional Negligence is crucial because it establishes the standards that the courts consider the normal and reasonable approach for handling professional negligence claims.

Paragraph 3.1 of the Protocol sets out that, if court proceedings are initiated, the court will determine whether to impose sanctions for substantial non-compliance with it. This guidance is aligned with that set out in the Practice Direction for Pre-Action Conduct and Protocols, which suggests that while the court is likely to disregard minor or technical breaches, substantial non-compliance can lead to significant sanctions against the offending party.

Paragraph 3.2 expands the scope of the Protocol by setting out that the parties are expected to act reasonably when operating the timetable and exchanging information during the Protocol period. This means that even if the Protocol does not explicitly address a specific issue, parties should abide by its spirit by acting reasonably and cooperatively.

Preliminary Notice of Claim

The first step in the Protocol process is for the Claimant to notify the Defendant in writing once there are reasonable grounds for a claim. Paragraph 6.1 of the Protocol sets out that this preliminary notice should:

Identify the Claimant and any other parties.
Contain a brief outline of the Claimant’s grievance.
Provide a general indication of the financial value of the claim, if possible.
Ask the Defendant to inform their professional indemnity insurers immediately.

The Defendant is required to acknowledge receipt of this letter within 21 days, as stipulated in paragraph 6.2 of the Protocol.

Letter of Claim

When the Claimant decides there are sufficient grounds for a claim, a detailed Letter of Claim should be sent to the Defendant in accordance with paragraph 6.3 of the Protocol. This letter must:

Identify any other parties involved in the dispute;
Include a clear chronological summary of the facts, along with copies of any key documents;
Specify the details of the alleged negligent act or omission and what the professional should have done differently;
Set out how the act or omission caused the loss suffered, setting out the consequences and what would have occurred but for the negligence;
Provide an estimate of the financial loss caused by the alleged negligence, detailing how the loss is calculated. If it is not possible to supply these details in the Letter of Claim, the Claimant should explain why and indicate when they will be able to provide this information;
Confirm whether an expert has been appointed, provide the expert’s identity and discipline; and
Request that a copy of the Letter of Claim be forwarded immediately to the professional’s insurers.

Letter of Acknowledgment

The Defendant should acknowledge receipt of the Letter of Claim within 21 days, as required by paragraph 7.1 of the Protocol.

Investigations

Following the acknowledgment, the Defendant has three months to investigate the Claim and respond with a Letter of Response and/or a Letter of Settlement, in line with paragraph 8.2 of the Protocol. During this period, the Defendant should:

Assess whether the Letter of Claim complies with the Protocol’s requirements and, if not, inform the Claimant of the deficiencies and the further information required, as outlined in paragraph 8.1 of the Protocol.
Evaluate whether the Claimant has presented a legally and evidentially sound case or merely alleged wrongdoing without substantial evidence.
Review the provided evidence, including expert opinions and key documents.

If more time is needed to complete the investigation, the Defendant should promptly request an extension from the Claimant, explaining the reasons for the delay and the anticipated extension required, as specified in paragraph 8.3 of the Protocol. The Claimant is expected to agree to reasonable requests for extensions to avoid unnecessary delays.

Response to the Letter of Claim

Upon completing their investigation, the Defendant should send a Letter of Response as detailed in paragraph 9.2.1 of the Protocol. The Letter of Response should:

Be sent in open correspondence (as opposed to being ‘without prejudice’)
Clearly state which parts of the claim are admitted or denied, providing reasons for their stance.
Specifically address the allegations.
Provide the Defendant’s version of disputed events.
Offer an estimate of the financial loss if it disputes the Claimant’s estimate. If an estimate cannot be provided at that time, the response should explain why and indicate when it will be available.
Include copies of key documents not previously exchanged.

This letter, while not a formal defence, is a crucial step, as the court may impose sanctions if it significantly differs from the eventual defence, as outlined in paragraph 9.2.2 of the Protocol.

Paragraph 9.4.1 sets out that if the Letter of Response denies the claim entirely, the Claimant may proceed with court proceedings.

Experts

The protocol recognises that in professional negligence claims, the parties and their advisers will require flexibility in their approach to expert evidence.

In a professional negligence claim, separate CPR 35 expert opinions may be needed on breach of duty, causation or the quantum value of the claim.

Paragraph 11.2 of the Protocol sets out that the parties should co-operate when making decisions on appropriate expert specialisms, whether experts might be instructed jointly and whether any reports obtained pre-action might be shared and should at all times have regard to the duty in CPR 35.1 to restrict expert evidence to that which is reasonably required to resolve the dispute.

Any expert reports obtained at the pre-action stage are only permitted in proceedings with the express permission of the court.

Alternative Dispute Resolution (ADR)

The Protocol imposes an obligation on the parties to consider whether some form of ADR is more suitable than litigation. The courts have a wide discretion to sanction parties in costs if they are held to have behaved unreasonably by refusing to engage in ADR. This is not to say that a party would necessarily face costs sanctions for declining to accept an invitation to participate in an ADR process: this would depend on whether the refusal to participate was reasonable in all the circumstances.

In practice, it is common for the parties to professional negligence claims to engage in some form of ADR, although not necessarily always at the pre-action stage.

Mediation is a commonly used form of ADR for professional negligence claims and often leads to a successful resolution of the dispute, either on the day of the mediation itself or in the course of follow-up negotiations after the mediation.

Conclusion

Adhering to the Pre-Action Protocol for Professional Negligence involves detailed and timely communication between the parties. Every step, from the preliminary notice to managing experts and engaging in ADR, is crucial.

Elysium Law will help you navigate the complexities of the Pre-Action Protocol for Professional Negligence, ensuring full compliance and thereby avoiding potential court sanctions for non-compliance. We will put forward robust representations that effectively outline your claims or defences, facilitating early settlement discussions and saving you the time and costs associated with litigation.

We have extensive experience in representing large, often multi-national groups in claims for professional negligence brought by or against solicitors, accountants, surveyors, trustees and other professionals and have been successful in obtaining many multi-million-pound recoveries for Our Clients.

For further guidance on professional negligence claims, contact our experienced team today.