Important Developments in the role of Adjudication in Professional Negligence claims

May 8, 2018

The Professional Negligence Pre-Action Protocol has been revised with effect from 3 May 2018.  The changes include a significant revision to encourage parties to use the Adjudication Scheme promoted by, amongst others, the Professional Negligence Bar Association, with the support of the Ministry of Justice.

It is likely that this will lead to more claimants proposing adjudication and to more disputes being referred to adjudication.

A copy of the Scheme as developed for the pilot stage (the rules have not changed) can be found here: Adjudication Scheme.  The new form of the Protocol can be accessed here: Protocol

When setting out what should be in the Letter of Claim the Protocol now says that a claimant must give:

 (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.

The nominating body is the chairman of the PNBA, presently Caroline Harrison.  It is understood that the PNBA is in the process of putting together new procedures with a view to maintaining a list of accredited adjudicators. However, as reflected in the wording of the Protocol, it is not necessary to seek a nomination from the nominating body.  Rules 6 and 7 of the Scheme provide that the parties can agree an adjudicator themselves and also contain a procedure for notification of the identity of that individual to the chairman of the PNBA, and for confirmation of the appointment by the chairman in the light of that agreement.

The Professional Negligence Group at Hailsham Chambers is a supporter of the Adjudication Scheme and of the work of the PNBA and others in relation to it.  Some members have already been involved with the Pilot Scheme, having acted as adjudicators, and all members have taken a close interest in its development.  Members also have substantial experience of ADR including the different forms of arbitration.

Members of the Group are happy to accept appointment as adjudicators or to represent parties in adjudications.

Please contact Stephen Smith, our Senior Clerk, if you would like further information, including if we can be of any assistance in identifying a suitable individual or individuals for appointment as an adjudicator.