The Pre-Action Protocol for Professional Negligence has just been amended to include a requirement for Claimants to state in the Letter of Claim if they wish to take up the option of referring the dispute to adjudication. If they do, they must offer three names for an adjudicator or seek a nomination from a nominating body. But if they do not want to use adjudication, they must give their reasons. The new Protocol took effect on 30 April 2018.
This change – which came as something of a surprise even to many in the adjudication world – is an attempt to encourage parties to use, or at least to consider, the Scheme which has bene piloted since 2015 with support from the MoJ and the Master of the Rolls.
The Scheme has not had enormous take-up to date (for various reasons, including ignorance of it), but where it has been used it seems to have been considered a success, particularly after it was revised and re-launched in 2016. It has now become an established Scheme, rather than a pilot.
Although it was originally limited to solicitors’ negligence claims valued up to £100,000, it can now be used for disputes relating to any profession and without any ceiling on the quantum. There is a working group chaired by two High Court Judges monitoring it and the nominating body is the Chairman of the Professional Negligence Bar Association (PNBA). Although the original panel of adjudicators were drawn from the more senior members of that Association, there is scope for parties to agree on the appointment of their own chosen adjudicator. The parties can also choose at the outset whether the decision should be permanently binding or “temporarily binding” pending possible court resolution (as is the case in the construction disputes adjudication scheme), as well as choosing to have a confidential decision or not.
This change to the Protocol has already caused a stir in the sector and it is likely to bring about an increase in the take-up of the Scheme. It is also likely to be the subject of considerable interest and comment in the coming weeks and months as more advisors have to give serious consideration to use of this further extra-judicial method of dispute resolution.
The new provision in the Protocol is at para 6.2 and can be found at: