May 2016 saw the re-launch of the Adjudication in Professional Negligence Disputes pilot scheme following dismal take-up rates. The rationale behind the re-launch was to make it a more accessible and appealing.
The adjudication process involves parties filing a notice requesting the appointment of an adjudicator or providing details of the adjudicator agreed by the parties. The adjudicator is appointed from a panel of barristers specialising in professional negligence disputes and within 5 working days directions are given for the exchange of witness evidence and/or submissions. Adjudication under the scheme may be commenced at any time (i.e. during the pre-action process or after proceedings have been commenced).
Features of the scheme include the following:
- The original scheme was limited to solicitors but has now been widened to include accountants, architects and financial advisers;
- The scheme was previously limited to claims of up to £100,000. This claim cap has been removed;
- The adjudicator is now required to provide a reasoned judgment within 56 days of appointment;
- Sums awarded by the adjudicator are payable within 21 days and can be enforced by way of an application for summary judgment, which can only be defeated if there is a jurisdictional challenge or procedural unfairness;
- In contrast to mediation, the decision of the adjudicator is binding. It will therefore not be a defence that the adjudicator erred in fact or law;
- Parties are jointly liable for the adjudicator's costs, but the adjudicator has the power to require the losing party to pay costs;
- Documents produced for the adjudication, statements made during its conduct and the decision will be private and confidential save that the decision will cease to be confidential within 21 days of its release to the parties or in the context of any enforcement of the decision. However, in the event the parties agree the matter should be finally determined in subsequent proceedings, the decision and all documents may be disclosed in subsequent legal proceedings or arbitration.
However, the scheme has failed to "live up to its hype" and anecdotal evidence suggests that there continues to be little interest in it.