Case Study – Professional Negligence Lawyers Association and the Professional Negligence Bar Association Adjudication Scheme
By David Chase, Deputy Underwriting Manager
(Estimated reading time: 2 minutes, 30 seconds)
This case concerned a professional negligence claim against a law firm regarding the drafting of a will. The testatrix’s instructions in respect of her half share in a property was for one half of her share to go to her spouse and the other half of her share to be divided equally between two children. It involved both the Professional Negligence Lawyers Association and the Professional Negligence Bar Association Adjudication Scheme.
The testatrix subsequently died, the property was sold and the proceeds distributed in accordance with the will. The subsequent claim was that the testatrix’ instructions had been misunderstood; what she wanted was for her whole half share to go to the children equally and nothing to her spouse.
The evidence on the file was clear – the instructions recorded were that the testatrix’ share be divided equally – half to the spouse and half to the children. This was confirmed to the client in writing and the letter returned with the manuscript notation confirming this as correct. A draft will in accordance with the instructions was also sent to the client with the specific written explanation regarding the property. Further explanation was also given at execution of the will, where the testatrix confirmed all as correct.
During the course of the claim, it was confirmed that the manuscript notation on the letter was in fact made by daughter. The daughter, son and two other family members all made statements that the testatrix’s did not want the spouse to have anything from her share in the property and that the instructions had been misunderstood.
With approval of the law firm’s professional indemnity insurers, the claim was defended. Proceedings were then issued and defence was served.
Tactically it was considered there was a risk if the case (valued at £11,500) went to trial; the claimants would gain the sympathy of court, even in the face of documentary evidence of the file and of the fee earner who drafted the will. From the defendant’s perspective, if it went to mediation some damages would have to be paid or otherwise the mediation would be pointless.
It was felt that the barrister from the PNBA Adjudication Panel considering the papers was likely to make finding of no breach. Adjudication was proposed with approval of insurers (category ‘A’ adjudication) and the claimant agreed to binding adjudication and to give the adjudicator power to award costs generally for the whole claim, not just the adjudication itself.
Witness statements were filed and served. The adjudication award was a finding of no breach and costs were awarded against the claimant and assessed. The claim therefore disposed of relatively cheaply and certainly at less cost than a contested trial.
Please contact our underwriters to discuss your case or requirements. If you are a PNLA member please let us know when getting in touch.
If you would like more information on our litigation insurance and disbursement funding products for professional negligence cases, or you have any other legal expenses insurance query, please email firstname.lastname@example.org or call me on 01483 514424.
David is the Deputy Underwriting Manager in Temple’s Commercial Department who partners with solicitors and brokers to provide litigation (ATE) insurance and funding solutions to businesses and individuals.
Having started his career in ATE insurance in 2006 at FirstAssist, David gained experience in litigation funding as an analyst at Burford Capital, before joining Temple Legal Protection in late 2013. Having worked for over 12 years in this evolving market, David knows what drives customers and he understands that it is how well you connect with the people you are trying to help that makes you succeed.
David has helped hundreds of customers and has worked with many of the leading law firms in the British Isles. He has extensive and varied experience in risk analysis, case management and long-term relationship management. One of David’s specialisms is his management of our fully-delegated schemes, a responsibility which plays an integral part in the retention of Temple’s partnerships with many leading and specialist commercial law firms.
In his role as Deputy Underwriting Manager, David considers a very wide variety of non-injury litigation including all types of commercial litigation, group actions, professional negligence cases, insolvency actions and contentious probate. He combines strategic activities – evaluating developments such as the impact of ADR on the commercial litigation sector – with expert underwriting in order to assist customers in making efficient and timely use of our litigation (ATE) insurance and funding products.
He continues to work towards his qualifications as a member of the Chartered Insurance Institute.
Read articles by David Chase