A claim against a professional can be a daunting prospect for an individual or business let down by a solicitor, valuer, accountant, insurance broker, or other professional. Not only have financial losses been suffered already, the prospect of further expenditure on legal costs, taking on the risk of an adverse costs order and lengthy delay before a case gets to trial, is unattractive. An Adjudication Scheme has been launched recently which will be of considerable assistance in pursuing such claims without incurring an unpalatable level of risk.
The Scheme is supported by the Ministry of Justice and covers a broad range of professional negligence disputes. Unlike the Financial Ombudsman Service, there is no financial limit to the amount of compensation available under the Scheme, but it is voluntary, meaning that if a professional refuses to participate, he or she cannot be forced to.
The basic mechanics of the Scheme are that an adjudicator is either agreed upon by the parties or selected by the Professional Negligence Bar Association from an approved list and tasked with putting in place arrangements so as to provide a final decision on the dispute within 56 days of appointment. The adjudicator can direct that the parties exchange witness statements, documents and submissions. His or her decision will be made in writing and will explain the reasons for the decision, but usually there will be no need for a trial or hearing. The process provides for much swifter decision making than either of the Financial Ombudsman Service or litigation.
The intention is that the chosen adjudicator’s decision will be final, and will be capable of being enforced through the courts. As an alternative, and by agreement by both parties, the decision may be treated as a “steer” to promote settlement in a more protracted dispute, perhaps on just one issue.
So far as costs are concerned, given the speed of the process, the limited procedural requirements and the lack of a hearing, the costs will be much lower than litigation. The scheme rules have the flexibility for the parties to decide at the outset whether the adjudicator will have the power just to make a decision about who should pay his / her fees, or whether that power will also extend to ordering parties to pay each other’s fees. The fees due to the adjudicator are banded so that at the outset the parties know the maximum they will pay to the adjudicator. There is a specific emphasis in the scheme rules to limiting costs where one party may face “resourcing difficulties”
This adjudication scheme is just one of the tools Claire Collinson Legal has available to promote access to justice at reasonable cost. We have a wide experience of professional negligence claims and would be happy to review potential claims against professionals, or existing disputes where costs have become a problem or positions have become entrenched, for their appropriateness for this scheme.
