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Amendments to the Pre-Action Protocol for Professional Negligence and Adjudication for Professional Negligence claims

By Stephen Reilly and Josh Mills (Beale & Company).
09 May 2018

On 1 May 2018, the Civil Procedure Rule Committee published amendments to the Pre-Action Protocol for Professional Negligence claims.

The changes state that a Letter of Claim should now, in addition to including the information set out in paragraph 6.2,

1. Indicate whether the claimant wishes to refer the dispute to adjudication;
2. If they do, they should propose three adjudicators or seek a nomination from the nominating body; or
3. If they do not wish to refer the dispute to adjudication, they should give reasons why.

Background to these PAP changes

Adjudication is a tried and tested method for construction dispute resolution, introduced as a common step for construction cases by the Housing Grants Construction and Regeneration Act 1996. That adjudication process has since been adapted by a High Court pilot group to suit professional negligence claims. The intent behind the Professional Negligence Adjudication Claim scheme is to enable parties to a professional negligence dispute to obtain a quick adjudication of their dispute, at relatively minimal cost. There is considerable flexibility involved to allow the parties to be creative in the adjudication procedure and scope to suit their particular case. This is the first time this adjudication scheme has been referenced in the Pre Action Protocol requirements.

The essential elements of the scheme are that:

• The adjudication process is entirely voluntary. Both parties must agree to have their claim dealt with by way of adjudication;
• If the parties cannot agree on an Adjudicator, then one will be selected by the Chairman of the Professional Negligence Bar Association from a panel of barristers who specialise in professional negligence disputes;
• The Adjudicator will ask for evidence and written submissions from the parties;
• Within 56 days of her/his appointment the Adjudicator will provide a reasoned written decision. Any sum payable per that decision is due within 21 days;
• That decision will be enforceable by the Courts and (subject to the parties’ agreement on this issue) be (i) legally and finally binding or (ii) like Housing Grants Construction and Regeneration Act 1996 construction related adjudication, legally binding unless and until altered by a later court or arbitral tribunal;
• There are default options built into the scheme for the parties to agree the extent of the Adjudicator’s power to award costs.

It remains to be seen what take up the voluntary Adjudication scheme will have. For the right case, the scheme should help the parties avoid Court proceedings and reduce costs - which will no doubt be welcomed by Insurers.

View The Pilot Pack for the Adjudication Pilot Scheme which contains the Scheme’s more detailed rules and guidance notes.

View the updated Pre-Action Protocol.