Professional Negligence: A new Dawn?

Professional Negligence…a New Dawn??

Professional Negligence in England and Wales has recently entered a new era in respect of its decision making. Launched on the 25th May 2016, a new adjudication process dealing specifically with professional negligence claims is now in place. But how will this affect future professional negligence claims and consumer rights in respect of negligence suffered at the hands of a professional? Deian Benjamin, a specialist professional negligence lawyer in our litigation department and member of the Professional Negligence Lawyers Association assess the key changes and likely impact of this new adjudication process.

To address the issues, we must look at how the new scheme has been implemented, based on the 2015 Pilot Scheme that was launched in February 2015 which was administered by the Professional Negligence Bar Association (“PNBA”). This scheme was designed to apply to the following types of negligence claims:

1 Specific negligence claims against solicitors; and
2 Where damages sought was less than £100,000 plus legal costs.

The PNBA scheme was aimed that providing an adjudication decision within 56 days that would be deemed binding on the parties partaking within the pilot scheme (unless it was agreed to the contrary prior to commencing the adjudication process).

The intention at the outset of this scheme was to test the procedure with three test cases being adjudicated. However, only two cases were adjudicated, prompting a review and subsequent relaunch and reworked adjudication model which would encourage a far higher uptake of claims to be determined using this adjudication scheme.

The New Dawn?? – The 2016 Scheme

Following discussions with professionals regarding the 2015 Scheme and the implementation of a newer, better scheme, chaired by Mrs Justice Carr and Mr Justice Fraser, crucially with input from the Professional Negligence Lawyers Association, the Professional Negligence Bar Association, the Association of British Insurers and key representatives of the professional indemnity market, the new 2016 Scheme has now been launched and is available to litigants in determining professional negligence claims.

The new scheme is now available to claimants and the key changes from the 2015 Scheme are as follows:

1 The new scheme is available for all (non-medical) professional negligence disputes, not limited to solicitors’ negligence claims like the old scheme;
2 The scheme applies to claims for damages of any value;
3 Prior to commencing the adjudication process, the parties will decide whether the adjudication will be binding and final or binding and not final;
4 The costs of adjudication will be banded in accordance with the value and complexity of each dispute.

This 2016 Scheme is not designed to be a stand-alone method of Alternative Dispute Resolution (“ADR”), but is intended to coincide with forms of ADR, for example, where a mediation has failed or deemed inappropriate for the subject matter in dispute, the 2016 Scheme of adjudication could be a worthwhile alternative for parties to consider.

With Courts emphasising the need for parties to resolve their difference without the need to incur Court costs and Court time, this new form of adjudication is to be welcomed as another ADR method of resolving disputes whilst also keeping down litigation costs. No doubt parties will now consider such an approach as an alternative method of resolving disputes relating to professional negligence claims. If the 2015 Scheme emulates the success of adjudications in other areas of law, for example the construction industry where adjudications are now commonly adopted in dispute resolution procedures, it would be a welcome addition to the ADR roster of methods that will not only resolve disputes, but also keeping costs to a minimum for all parties.

Sinclairslaw Limited have a team of experienced litigation and professional negligence lawyers that could assist you with using the new adjudication scheme or to assess your negligence claim. Contact us to discuss your needs on 02920 706444 or by info@sinclairslaw.co.uk

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