There is still “quite a lot of ignorance” among solicitors about adjudication as a “swift and relatively inexpensive” way of settling professional negligence disputes, a barrister adjudicator has said.
Ivor Collett, a committee member of the Professional Negligence Bar Association (PNBA), said a revised adjudication scheme was launched by PNBA in May this year.
Mr Collett, based at Crown Office chambers in London, said that under the amended pre-action protocol for professional negligence cases introduced in May 2018, claimants were obliged to consider adjudication and give reasons if they believed it was not suitable.
They could be penalised on costs if their behaviour was unreasonable.
“I’ve been talking to law firms and insurers about this and it’s surprising how many don’t know about it.
“Insurers are getting a handle on it, but some solicitors often only realise when they check to make sure there is nothing else they need to do before they launch proceedings.
“The more the market learns about the scheme, the more it will use it. We would like it to be more popular than it is. It’s another tool in the box.”
Mr Collett did not give precise figures for the number of adjudications handled under the scheme over the past year, but said it was in the tens rather than the hundreds.
He said that among the advantages of adjudication were that cases were “done and dusted” within 56 days of appointment of an adjudicator and there was generally no need for an oral hearing.
He said that, when the adjudication pilot scheme was launched by PNBA in 2015, it was aimed at lower-value claims of £100,000 or less and restricted to claims involving solicitors.
There was now no longer any financial ceiling for adjudications, and Mr Collett said he had recently adjudicated on a claim worth £300,000.
However, adjudication was unlikely to be used for cases of over £1m, where the parties have less incentive to save costs.
The barrister said the limitation to cases involving solicitors had also been abolished, and any non-medical professionals could be involved, such as accountants, independent financial advisers and architects.
However, he said the majority of cases were still about solicitors, partly because of the presence of alternatives such as the Financial Ombudsman Service and the statutory construction adjudication scheme for building claims.
Mr Collett, who is a construction adjudicator, said that unlike that scheme, where one party could compel the other to attend, the PNBA scheme was entirely voluntary.
He said there was also an option to make an adjudication non-binding, though, so far as he knew, it had never been asked for.
“It could in theory be used by a stalking horse or by someone wanting an independent point of view while retaining their right to go to court.”
PNBA has set up a training course for barristers who want to become adjudicators and the first group were accredited in January this year.
Mr Collett added that, like building disputes, enforcement of adjudications was by summary judgment in the courts.