There has been a change to the Rules which set out how you must pursue a claim against a professional for negligence.
You are now encouraged to consider a form of adjudication rather than going down the more traditional route of suing the professional if you are not able to resolve your differences. If you can’t show that you have considered this option, the Court can penalise you, for example, in the costs you can recover from the professional in your claim if you win.
So why is this important and what does it mean?
Well, firstly, it means there is another avenue you can consider to avoid the time and expense involved in going to Court. If both you and the professional agree, you can take part in a voluntary process in which an independent arbitrator would make a decision which would either resolve your claim permanently or temporarily, pending court proceedings. You can also agree whether the arbitrator can decide who should pay the costs of the process, so you are not completely out of pocket.
So, what are the pros of this route?
Adjudication can be cheaper than suing the professional.
It can be much quicker; a decision can be made as soon as 56 days after the arbitrator is appointed.
You have some control over who will be appointed and can choose an expert in the relevant field.
The process can be more flexible than Court proceedings.
The decision can be binding and final if you choose it to be and any damages will be payable within 21 days. If they are not paid, you can enforce the decision through the Court.
You can agree with your opponent what the approach to legal costs should be.
The potential strain on your management time may be lessened.
And what are the cons?
Although adjudication can be cheaper than suing in the Courts, it is not a costs free process. Your legal adviser will still have to prepare witness evidence and submissions, for example, which will set out your case.
A decision could be made on the basis of the documents you and the professional produce, but the adjudicator can ask the witnesses to attend a hearing or telephone hearing. Although not as stressful as a Court hearing, this is still a drain on your valuable management time.
As the cases are often decided on paper, there is an element of rough justice.
Adjudication may not be suitable for some claims if they are complex, of very high value or will need witness evidence.
Often, the decision about whether to adjudicate or litigate will have to be made at a very early stage and before you know what the professional’s position will be.
So, adjudication is something which you need to consider at an early stage in claims against professionals. But it might not be suitable for every case. Whether it is or it isn’t can be assessed with an early review of your case by a legal adviser
This post was written by Michelle Davies. For further information, please contact:
Michelle Davies, legal director, Commercial Dispute Resolution
T: 0121 234 0092