Adjudicate! Adjudicate!

(An Amendment to the Professional Negligence Pre Action Protocol)

An amendment to ‘The Pre-Action Protocol for Professional Negligence came into force recently. The amendment to the protocol was made following a pilot to establish a scheme of adjudication for professional negligence claims that were not construction contracts. The change indicates what information should be included in a letter of claim in respect of adjudication.

There is now a requirement for the Claimant to indicate in the Protocol Letter of Claim whether they wish the dispute be referred to adjudication and, if not, the reasons why.

So what is adjudication? The key points are:

(1) Adjudication provides a reasoned decision.

(2) There is the chance of full recovery for damages in successful claims, as well as no payment for defendants if the claim fails

(3) An adjudicator can be chosen with expertise in the type of claim concerned.

(4) This is a ‘tried and tested’ method for dispute resolution. It was introduced as a compulsory step for construction cases by the Housing Grants Construction and Regeneration Act 1996. The pilot group included construction experts who have given guidance on the documents in the pack to adapt the procedure to professional negligence claims.

(5) There is considerable flexibility for parties to be creative in the procedure and scope to suit their particular case.

(6) There is likely to be scope for costs sanctions for unreasonable failure to engage in adjudication similar to those applied in mediation.

There are, however, some obvious shortcomings, namely:

(a) It is difficult for claimants to address this point without even having seen the Response Letter.

(b) There is no corresponding requirement for defendants to address adjudication at all in the Response Letter.

(c) The amendment is likely to cause considerable anxiety as things stand for those drafting claim letters, especially litigants in person.

On the positive side it is hoped that this obligation will now encourage use of adjudication as an ADR option with a view to resolving disputes more cheaply and quickly, especially those of lower value where funding for litigation to trial is likely to be prohibitive.

Seek specialist advice by contacting David Rogerson at Chattertons 01636 675563 or david.rogerson@chattertons.com