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The Professional Negligence Pre-Action Protocol – A new approach to resolving disputes?

The Professional Negligence Pre-Action Protocol (“Protocol”) has been revised and this article discusses the three main changes to the protocol which have prompted most debate.   The purpose of the amendments is to bring the Professional Negligence Protocol in line with amendments made to the Pre-Action Protocols generally following recommendations by Sir Rupert Jackson in his final report. 

Alternative Dispute Resolution (ADR)

The new Protocol makes a clear statement that Court proceedings show be a last resort in professional negligence claims and if Court proceedings are issued the parties may be required to provide evidence to the Court to confirm that ADR has been considered (paragraphs 12.1 and 12.3 of the Protocol).  This is unlikely to place any new more onerous obligations on Claimants and Defendants and this clear policy focus is likely to be welcomed by Claimants, Defendants and Insurers alike.

The Protocol also restates the position under case-law that an unreasonable refusal to engage in ADR might have cost implications (paragraph 12.3).  Whilst this position should already be clear to potential parties, this could be useful in responding to claims brought by litigants in person as this is a clear summary of the position.

This new emphasis on ADR is in line with other changes in management of Professional Indemnity claims.  Adjudication has long been available, and has been used effectively in, claims against construction professionals; however this method of ADR has traditionally been difficult to transfer to claims against solicitors and accountants, for example. However, in February this year a voluntarily pilot scheme for adjudication of solicitors’ professional negligence claims under £100,000 excluding costs was launched. The aim of the scheme is to be able to provide a cost effective means of resolution for lower value claims.  We await to see the results of the scheme later this year. 

With the changes to the Protocol, and the potential  introduction of  a new adjudication scheme, it is clear that parties to lower value professional negligence claims do have more tools available to them to encourage early discussions and attempts at ADR such that Court proceedings should be able to be avoided if possible.

Disclosure

The amended Protocol makes it clear that Claimants should provide key documents with the Letter of Claim and at any time documents that are reasonably requested by Defendants (paragraph 10.1).  Defendants are under an obligation to provide key documents with their Letter of Response. This is a welcome re-statement of the position with the addition of  tying disclosure obligations to the serving of a Letter of Claim and a Letter of Response.   Early exchange of documents and information can lead to the early resolution of disputes or the narrowing of issues, both of which  are in line with the clear spirit of the amended Protocol which is to avoid Court proceedings where possible.

However, an important limit is placed on the parties duties of disclosure as the amended Protocol now makes express reference to parties not being obliged to disclose any document beyond that which could be ordered by a Court under pre action disclosure under CPR r 31.16 (paragraph 10.2).  Whilst this is not a new addition to the Protocol, the explicit reference to CPR r 31.16 is welcomed as it does firmly ground any attempts to resist or to seek documents wider than the parties’ obligations under the Civil Procedure Rules. 

Stocktaking

An entirely new addition to the Protocol is the so-called Stocktake provisions at paragraph 13.  The so-called Stocktake provision is a mechanism in which if the Protocol procedures have been followed but this has not resolved the dispute, the parties should undertake a full review of their  positions and consider if proceedings can be avoided or the issues between them narrowed.

This is the provision which has prompted the most discussion amongst practitioners. Generally, parties to litigation already conduct an informal “stocktaking” process as part of their review of pre-action correspondence and documents and therefore practioners and parties should not be troubled by this addition. 

However, the provision is somewhat ambiguous and this could lead to unnecessary costs being introduced. How is the Court or the parties to tell that the other party has fulfilled this stocktaking obligation for example?

Conclusion

Overall, the new amendments to the Professional Negligence Protocol are to be welcomed and are simply a restatement or clarification of parties’ existing obligations under the Protocol.  The combination of the amendments to the Protocol, new pilot voluntary adjudication scheme and the increase in Court fees are together all likely to result in any increased willingness of parties to try to avoid court proceedings where possible.

Further information can be found on the Ministry of Justice’s website, where all pre-action protocols are published.

Contact

For further information please contact Sarah McMorrow, Senior Solicitor on 020 7220 5208 or Sheona Wood, Partner on 020 7280 8804.

By Sarah McMorrow

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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