This Checklist sets out the position under the Pre-Action Protocol for Professional Negligence claims (the 'Protocol') currently in force. For general guidance on the Protocol, see Practice Note: Professional negligence claims—the pre-action protocol. This Checklist should be read in conjunction with Practice Note: Professional negligence claims—pre-action protocol—defendant issues. For guidance on commencing a professional negligence claim, including with reference to a worked hypothetical set of pleadings and including a template precedent particulars of claim, which may assist a defendant with regard to what they may expect to face, see: • Practice Note: Starting a professional negligence claim—a practical guide • Practice Note: Pleading professional negligence claims—worked hypothetical examples • Precedent: Particulars of claim—professional negligence claim Professional receiving preliminary notice (professional negligence PAP) Requirement to acknowledge receipt of the preliminary notice within 21 days. In so doing, consider: • is any clarification required (unusual since the letter is required to do no more than notify)? • is it appropriate to make early admissions and/or assist the claimant on mitigation in order to save costs and/or reduce the claim? • are

This Practice Note considers the Pre-Action Protocol for Professional Negligence claims currently in force. Note: claims started on or after 1 October 2015 in the Business and Property Division may be suitable for and/or be subject to one or other of the shorter trials scheme or the flexible trials scheme. See Practice Notes: • Business and Property Division—shorter trials scheme • Business and Property Division—flexible trials scheme Scope of this Practice Note This Practice Note considers some of the issues that claimants may face when seeking to pursue claims for professional negligence in compliance with the Pre-Action Protocol for Professional Negligence claims (the ‘Protocol’). See also: Professional negligence claims—claimant steps—checklist. For guidance for defendants, see: • Practice Note: Professional negligence claims—pre-action protocol—defendant issues • Professional negligence claims—defendant steps—checklist This Practice Note should be read alongside Practice Note: Professional negligence claims—the pre-action protocol for general guidance on the Protocol including the pre-action timetable. For guidance on commencing a professional negligence claim, including with reference to a worked hypothetical set of pleadings and including

This Practice Note considers the Pre-Action Protocol for Professional Negligence claims currently in force. Note: claims started on or after 1 October 2015 in the Business and Property Division may be suitable for and/or be subject to one or other of the shorter trials scheme or the flexible trials scheme. For more information, see Practice Notes: • Business and Property Division—shorter trials scheme • Business and Property Division—flexible trials scheme Scope of this Practice Note This Practice Note considers some of the issues that defendants may face when seeking to defend claims for professional negligence while maintaining compliance with the Pre-Action Protocol for Professional Negligence claims (the ‘Protocol’). Also see: Professional negligence claims—defendant steps—checklist. For guidance for claimants in this respect, see: • Practice Note: Professional negligence claims—pre-action protocol—claimant issues • Professional negligence claims—claimant steps—checklist This Practice Note should be read alongside Practice Note: Professional negligence claims—the pre-action protocol for general guidance on the protocol including the pre-action timetable. For guidance on commencing a professional negligence claim (including with reference to a worked

This Practice Note sets out the position according to the Pre-Action Protocol for Professional Negligence claims currently in force. Scope of this Practice Note This Practice Note considers the Pre-Action Protocol for Professional Negligence claims (the Protocol), its application, aims, the general consequences of non-compliance and the relationship between limitation and Protocol compliance. It identifies the key stages required by the Protocol, ie the preliminary notice, letter of claim, acknowledgement, letter of response and the subsequent commencement of proceedings. It also looks at the exchange of information between the parties, experts, alternative dispute resolution (ADR) and the stocktake provision in the Protocol. For specific guidance on the Protocol from the perspective of a prospective party to such a claim, see: • Practice Note: Professional negligence claims—pre-action protocol—claimant issues • Checklist: Professional negligence claims—claimant steps—checklist • Practice Note: Professional negligence claims—pre-action protocol—defendant issues • Checklist: Professional negligence claims—defendant steps—checklist Throughout this Practice Note the Pre-Action Protocol for Professional Negligence claims is referred to interchangeably as ‘the Protocol’ or the ‘professional negligence PAP’. For guidance on

This Checklist identifies the key factors to consider when determining whether or not there is a viable claim to be brought in professional negligence in terms of the scope of the duty, causation and remoteness, when considering whether the losses claimed fall within the scope of the professional’s duty, using the ‘analysis model’ proposed by the Supreme Court in its 2021 decisions in Manchester Building Society v Grant Thornton and Khan v Meadows. For detailed guidance on causation and remoteness in this area, see Practice Note: Causation and remoteness in professional negligence claims. Note: in Armstead v Royal & Sun Alliance, the Supreme Court rejected the application of this six-point checklist used by the Court of Appeal when deciding whether the claimant car-hirer could recover damages she was required to pay to the car-hire company for loss of use owing to the car being damaged by a third party’s negligence—the case had not been one where the scope of the duty had been in issue, therefore this six-point checklist

Construction analysis: A lender advanced a senior secured loan to fund a residential development, relying on a monitoring report prepared by Ridge and Partners in its capacity as Independent Monitoring Surveyor (IMS). Construction costs were understated in the report, which was produced without independent benchmarking against market rates and failed to disclose Ridge's material conflict of interest under RICS guidance, given that it had prepared the developer's original cost appraisals on the same project. The court established, for the first time in English law, that an IMS's failure to manage a conflict of interest under RICS guidance constitutes a standalone head of professional negligence liability, and that mandatory RICS professional standards are determinative of the standard of care expected of a reasonably competent surveyor. The court further held, applying Manchester Building Society v Grant Thornton, that the IMS's liability is confined to losses flowing from the specific risk its duty was designed to guard against—not the entirety of the lender's transaction loss. Written by Dipen Shah, Arbitration & Construction lawyer—India, solicitor England & Wales.

Dispute Resolution analysis: Mr Radia (R) pursued a professional negligence claim against Professor Marks (P) who had appeared as a single joint expert in R’s Employment Tribunal case. The tribunal rejected R’s disability discrimination claim and held him liable for his employer’s costs, finding that he acted dishonestly and persisted with his claim knowing that it had no reasonable prospects of success. In the professional negligence claim, R sought to recover the full extent of his costs’ liability from P, alleging that P should have identified in the medical records information that contradicted R’s own account to him. R alleged that this would have prevented adverse credibility findings and the costs order. The court held that a duty owed by the expert did not extend to shielding the party from adverse credibility findings and, obiter, that P lost on breach of duty and causation in any event. Written by Nadia Whittaker, barrister at Crown Office Chambers.

Insurance & Reinsurance analysis: In this case the judge considered the correct approach to determination of a claim for insurance brokers’ negligence in circumstances where the consequence of that negligence was said to have been that the claimant did not have liability insurance cover which would or may have responded to a settlement entered into between the claimant and a third party. The particular issue before the court related to the position where the claimant might not be able to establish on the balance of probabilities that there would have been liability under the hypothetical liability insurance, but wished to claim a partial recovery on the basis that he had lost the chance that an insurer would have taken a pragmatic stance and made a partial payment. The court held that such a claim was viable in law. Written by John Bignall, barrister at 7 King’s Bench Walk.

Where a solicitor has drafted a Will which fails to achieve the testator’s intentions because of incorrect tax advice, there may be a right to recover those losses from the solicitor. However, there are a number of complexities to such claims. In particular, thought needs to be given to: • who the correct claimant is • the basis for the claim, and • implications for the limitation period(s) Examples of claims Two of the leading cases—Daniels v Thompson and Rind v Theodore Goddard—involved clients who had, on advice, made lifetime gifts which were intended as exempt transfers. However, the gifts were caught by the reservation of benefit rules (on which see Practice Note: IHT—gifts with reservation of benefit) which the solicitors in question had failed to advise upon at all (in Daniels v Thompson) or avoid (in Rind v Theodore Goddard). The effect in both cases was that the relevant gift was treated as forming part of the deceased’s estate for inheritance tax purposes. This would result

The professional principles form one of the eight regulatory objectives set out in section 1 of the Legal Services Act 2007 (LSA).

A paid (and qualified or experienced) trustee, to be distinguished from unpaid company nominated or member-nominated trustees, and often appointed to carry out defined administrative pension functions.

Pensions analysis: The Pensions Ombudsman has upheld complaints about the investment of pension scheme assets. Martin Scott of gunnercooke LLP looks at the decision.