“Almost every dispute has a sweet spot when it is amenable to consensual resolution. But that sweet spot will occur at different times for different disputes, and in many cases will be hard to identify.” [1]
Experienced litigators will be familiar with this idea – the “sweet spot” is usually found when the parties have enough information to make a realistic assessment of the likely evidence, arguments, prospects and costs, but before they have become too entrenched.
In the context of professional negligence claims, protocols may help the parties reach that point even before proceedings have begun – but, however advanced the claim, it still takes work to find the sweet spot…
Pre-action Protocols
Most claims against professionals are subject to the Pre-action Protocol for Professional Negligence (“PN” - applicable to claims against financial, legal and other professionals) or the Pre-action Protocol for Construction and Engineering Disputes (“CED” - applicable to claims against architects, engineers and other construction professionals). [2]
These protocols are by no means identical but they have much in common. At heart, they encourage a pragmatic exchange of key information before proceedings are commenced, with a view to narrowing the issues, building cooperation and avoiding litigation if possible.
Both protocols envisage succinct pre-action letters of claim and response, while recognising that parties may not yet be ready to exchange their expert evidence (if any). The PN protocol expects “key” documents to be supplied, whereas the CED protocol puts the emphasis on an early meeting. Both envisage PII insurers being involved from an early stage.
And, of course, both strongly encourage ADR, including mediation.
Getting the best out of mediation at the protocol stage
The protocol stage should be viewed as a settlement opportunity, not a mere prelude to inevitable litigation.
Protocol correspondence and meetings enable the parties to clarify the issues and set out their stalls before the litigation juggernaut begins to roll - and long before it becomes unstoppable. Pitched right, they can save time, narrow issues, and create a helpful platform from which to mediate.
That said, there is a balance to be struck. Too much detail may obscure critical issues and divert everyone into unproductive argument. Too little detail risks being superficial, depriving the parties of the information they need to assess the issues and explore resolution.
The recipe for success
Professionals are usually appointed under contract but claims against professionals are not necessarily contractual in nature. The professional may owe a tortious duty of care, a fiduciary duty, a duty as trustee, or some other obligation arising in the context of professional activities.
Once the cause of action has been identified, it is all too easy to concentrate on duty and breach (ie what the professional should have done, and what they did, or failed to do), without giving sufficient thought to the extent to which, as a matter of law, the professional will be held responsible for the consequences.
Duty and breach are obviously very important in professional negligence cases but in my experience “scope of duty”, causation, and recoverability of loss often prove to be more contentious.
Therefore, it pays to think carefully about all of these issues from the outset, discuss them with your client at an early stage, and be ready to set out your position on each of them at mediation. Otherwise, the parties will not have sufficient information to weigh up the case and arrive at the “sweet spot” for settlement.
Further information
My previous articles on mediating professional negligence disputes, and earlier articles on mediating civil disputes more generally, can be found here.
Further information on my background and experience can be found here.
If you would like to discuss how I may assist by mediating a claim against a professional, or other civil claim, please email or call.
_________________________________________________________________________
This article is for general guidance only, it must not be relied on as legal or other professional advice. Anyone engaged in a civil dispute should obtain their own legal and other advice specific to their circumstances and the applicable law at the relevant time.
© Duncan Crine Mediation Limited 02.08.2022
[1] Sir Geoffrey Vos MR, speech at Hull University, March 2021 [2] https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_neg; https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_ced; NB clinical claims have a separate protocol which is outside the scope of this article