Failure to use the PNBA Adjudication Scheme condemned by Mr Justice Fraser 30 April 2021

Mr Justice Fraser refers to the PNBA Adjudication Scheme

The costs decision is awaited and will be viewed with considerable interest by many. Whether or not the Judges are prepared to apply costs sanctions in this type of situation could change the landscape on the use of adjudication in professional negligence and liability claims.

Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd [2021] EWHC 1116 (TCC) (30 April 2021)

Mr Justice Fraser (para 152) says: “..there is an adjudication scheme for claims in professional negligence, operated by the Professional Negligence Bar Association. It was re-launched in 2017, and if it had been used in this case, would have led to an experienced Queen’s Counsel in the field considering the claims and (given it is not a statutory adjudication) issuing a non-binding decision. It is supported by the insurance industry, amongst others. It is a great pity that the parties did not adopt that method of resolving their dispute in this case. It would have been far quicker, and much more economical, than conducting a High Court trial which lasted over three TCC weeks, with all the costs to the parties that such a trial entails. In essence, this case really concerned issues of factual causation. Although they were not all called, there was a total of six different experts instructed in this case, with a claim against Canham for £3.7 million. The negligence was admitted in certain limited respects (or at least was agreed by the experts in the structural engineering joint statement). There were unusual facts, but in the event BPN have succeeded to the tune of only £2,000. Even though there were contested issues of fact, adjudications can in suitable cases proceed with oral evidence and cross-examination of witnesses. Using the scheme to which I have referred, to resolve a dispute such as this one, would have been a far better way for the parties to have proceeded.”

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