Professional negligence adjudication – it's all part of the Protocol

On 1 May 2018, an amendment to the Professional Negligence Pre-Action Protocol saw a further attempt to encourage parties to use the professional negligence adjudication scheme first devised as a pilot scheme in February 2015.

The professional negligence adjudication scheme was originally inspired by the adjudication process commonly used in construction disputes. The adjudication scheme is a voluntary "process by which an independent adjudicator provides the parties with a decision that can resolve the dispute either permanently or on a temporary basis, pending subsequent court determination" (as defined in the Protocol).

The scheme was refined and relaunched in May 2016 (see our blog update on the new process), following slow uptake of the original pilot. Since that point, adjudication has been an available form of ADR for any type of non-medical professional negligence dispute of any value including multi-party disputes. All adjudicating parties must agree:

1. In writing to be bound by the provisions of the scheme;

2. whether the adjudicator's decision will be binding and final or binding and not final; and

3. whether the adjudicator will be entitled to direct one party to pay another party's costs.

Unlike in construction adjudications, therefore, the process cannot be imposed by one party on the other; it has to be consensual.

The aim is to provide parties to a professional negligence dispute with a resolution much faster and cheaper than if the parties were to litigate, with the adjudicator (a specialist barrister from a panel) providing a reasoned decision within 56 days of their appointment.

The amendment to the Professional Negligence Protocol states that a Letter of Claim should indicate whether the Claimant wishes to refer the dispute to adjudication. If they do, the Claimant should propose three adjudicators or seek a nomination from the nominating body. If they do not wish to adjudicate, they should give reasons.

Although hard evidence of uptake is limited, we understand the scheme is still not widely used. We have successfully adjudicated several disputes and have a number of proposed adjudications in the pipeline. There is no doubt that, in the right case, it is a useful tool to resolve a dispute at a much lower cost and therefore adds something to the ADR options already available.

This amendment to the Protocol is likely to encourage claimants to propose adjudication more frequently, which should lead to an uptick in the number of adjudications and an increased awareness of the scheme. Whether a claimant will feel confident enough at letter of claim stage to propose it or will prefer to assess the claim after seeing the letter of response, at least this amendment ought to put the adjudication option in the minds of the parties and their advisers. 

For any further information about the scheme, please do contact the authors or any of your usual contacts at RPC.