Newsflash – Professional Negligence Pre Action Protocol Amended 3 May 2018
The Civil Procedure Rules website records that the amendment to ‘The Pre-Action Protocol for Professional Negligence (came into force on 30 April 2018): The amendment to the protocol is 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.
This requirement has just been added to the protocol to include in the claim letter 6(i) -
(i) An indication of whether the claimant wishes to refer the dispute to adjudication. If they do, they should propose three adjudicators or seek a nomination from the nominating body. If they do not wish to refer the dispute to adjudication, they should give reasons.
PNLA President’s comment
The PNLA has initiated and been involved in the pilot group. It has been hoped that for certain claims this ADR procedure will provide a cheaper alternative to issuing proceedings. The Civil Procedure Rules Committee has determined the form of words used to amend the protocol and the PNLA was not consulted.
There are obvious shortcomings which we will endeavour to take up with the Civil Procedure Rules Committee notably:
- It is difficult for claimants to address this point without even having seen the Response Letter.
- It is disappointing that there is no corresponding requirement for defendants to address adjudication at all in the Response Letter.
- There is no reference to the Pilot Pack which includes guidance, precedent documents and also a list of PNBA member adjudicators who have agreed to standard terms of appointment and fees. The links for the Pilot pack are:
a. PNLA website - http://www.pnla.org.uk/pnla-news-detail
b. PNBA website - pnba.co.uk/wp-content/uploads/2016/05/Professional-Negligence-Adjudication-Pilot-Pack-Launch-date-25-May-2016.pdf
(Please note that the 25 May 2016 Pilot Pack supercedes the 1 February 2015 version)
- The Pilot Pack refers to the Chairman of the Professional Negligence Bar Association as the nominating body for adjudicators. It is understood their Officers and Executive Committee have just become aware of the change to the protocol and are having discussions in this regard.
- 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.
- Adjudication provides a reasoned decision.
- There is the chance of full recovery for damages in successful claims, as well as no payment for defendants if the claim fails.
- The traditional ‘temporarily binding’ adjudication procedure allows dissatisfied parties to continue with the litigation afresh without the need for an appeal.
- An adjudicator can be chosen with expertise in the type of claim concerned.
- 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.
- There is considerable flexibility for parties to be creative in the procedure and scope to suit their particular case.
- There is likely to be scope for costs sanctions for unreasonable failure to engage in adjudication similar to those applied in mediation cases after Halsey v Milton Keynes NHS Trust  EWCA Civ 576 and the wider obligation referred to in PGF II SA v OMFS Company 1 Ltd  EWCA Civ 1288 (23 October 2013).
- The determination of the costs of the action and/or adjudication can be limited, included or excluded altogether from the scope of the adjudication. This may make attractive terms for ATE insurance possible as well as potentially being able to limit costs to the amount insured by BTE cover.
Please contact me with your experiences and comments at firstname.lastname@example.org