Pre-Action protocol for professional negligence

When an individual or company first intimates a claim for negligence against a former professional, the parties must adhere to the provisions of the Pre-Action Protocol for Professional Negligence. The Protocol sets out the preliminary steps that parties must take prior to issuing court proceedings.

The rationale for the Protocol is to allow parties to understand each other’s positions with the aim of settling a dispute earlier with fewer incurred costs and crucially, without involving the court system.

Paragraph 12 of the Protocol is entitled “Alternative Dispute Resolution”. In this paragraph, the Protocol implores parties to consider whether some form of ADR might enable them to settle their dispute without commencing court proceedings.

ADR can cover a wide range of processes. The Protocol names a few, including mediation, arbitration, early neutral evaluation, adjudication and Ombudsman schemes, however this is not by any means an exhaustive list.

Mediation

Mediation refers to a process whereby a third party “mediator” attempts to facilitate a resolution of a dispute between two parties. The mediator is often a legal professional, many times a barrister or retired judge, who will work with the parties to facilitate some form of compromise. The mediator’s decision is not binding or determinative. They are simply there to try and help the parties to understand each other’s cases, both in terms of their strengths and weaknesses, to enable the parties to reach an agreement.

It is often said that following a mediation, both parties leave with a sour taste in their mouths. However, given the risks and vast costs involved in litigation, mediation is often a good way for parties to end a dispute without risking too much in a ‘winner takes all’ court judgement.

At the other end of the spectrum is arbitration. This is almost akin to a private court room, where parties select the judge (an arbitrator) and the procedure rules they agree to follow. Unlike a mediation, an arbitrator’s decision is final, and can be enforced by regular civil courts all over the world. Arbitration is generally a preferred method of settling a dispute if the parties want the dispute to remain private and resolved between them behind the closed doors of their own private court.

Adjudication

Adjudication is somewhere between mediation and arbitration. The parties will nominate an adjudicator, again usually a legal professional or expert in the field of the dispute, to decide on the case. Adjudication is a much more dressed down version of arbitration. It often involves paper hearings and less extensive submissions and witness evidence. The process is often quicker. Like mediation, adjudication is not necessarily binding – it can be simply instructive for parties in advance of litigation or arbitration.

Adjudication has a special place in professional negligence, as there is a special Adjudication Scheme Pilot run through the Professional Negligence Bar Association. Parties can submit the claim to a pool of adjudicators, usually barristers specialising in Professional Negligence claims, who will read parties’ submissions and evidence, and give a decision. The Protocol even goes so far as to require a Claimant to include an indication as to whether they seek to refer the claim to adjudication. If a Claimant forgets to address their position on adjudication in their Letter of Claim, there could be costs consequences for them, even if they have a strong claim.

The Protocol highlights the potential costs implications of refusing to engage or of being silent on the issue of ADR. As was made clear in the relatively recent high court case of Wales v CBRE Managed Services Ltd [2020] EWHC 1050 (Comm), even if a party is ultimately successful in a claim, their refusal to engage with the question of ADR could see the court disallow them to recover significant amounts of costs.

Given the risks of not properly considering ADR, a party to a professional negligence claim should make sure their legal advisor is experienced dealing with the various forms of ADR. Specters has a long history of utilising ADR procedures to secure fantastic outcomes for their clients.

If you wish to instruct Specters to assist in your Professional Negligence case, please call us on 0300 303 3629 or make an enquiry on our website.