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Alternate Dispute Resolution grows for professional negligence claims

The Professional Negligence Lawyers Association (PNLA) is one of a select group of professional bodies that has been involved in the preparation and publication of a new, forward-looking scheme designed to minimise cost and give an element of certainty. The scheme is there to address professional negligence claims valued at less than £100,000.
Adjudication is not a new concept: parties simply agree to letting an independent expert decide something.  That ‘thing’ can be one or more points, technical or otherwise, or it can be the entire dispute. The novel thing for professionals is that the scheme endorsed by the PNLA can, if the parties agree, be a time-limited agreement: “unless we go to court and a judge finds differently” option.  Also new, is the agreed structure, a simplified approach, reducing the burden on lawyers imposed by considerable front loading of costs in the civil courts.  Perhaps best of all is the certainty; the adjudicator is limited to £5,000.00.  This may seem a lot, but is on a par with some mediators costs and may be less than the court issue fee on many cases, let alone the trial fee.
The scheme comes with an information pack circulated to the Association of British Insurers and a foreword from Mr Justice Ramsay, as approved by the Ministry of Justice “I am pleased to say that the Ministry of Justice has agreed to be involved…to consider…ways to minimise the costs and costs exposure of those who wish to bring professional negligence claims.”
The PNLA say that key advantages of the scheme are: (i) It is possible to obtain a reasoned judgment enforceable in Court at a lower cost (ii) The scheme can work with the courts pre action protocol claim and response letters as submissions from the parties. (iii) A panel of 5 adjudicators has been appointed for the pilot, all with many years of experience in this type of claim on standard terms of business and cost. (iv) The scheme itself is designed as a precedent which can be adapted by agreement. (v) Individual issues or points of law only could be adjudicated if they were a barrier to other forms of ADR like mediation and/or as a cheaper and quicker alternative to Court hearings.
Of course, it will be a matter of horses for courses and adjudication is not necessarily right for everyone.  An experienced dispute resolution team will have a range of options in its toolkit; mediation, negotiation, expert determination/adjudication and settlement meetings, together with a raft of options provided by the court process. Choosing which option to deploy, under which funding arrangement, is key to improving the commerciality of any resolution.
For further information please contact Kevin Rogers.