Professional Negligence Lawyers Association and the Professional Negligence Bar Association Adjudication Scheme
By Matthew Pascall, Senior 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.
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Barrister Matthew Pascall joined the commercial team at Temple Legal Protection, as Senior Underwriting Manager in November 2017.
Matthew was called to the Bar in 1984 and joined Guildford Chambers two years later. Spending more than 30 years in practice there, he has comprehensive knowledge and experience of the commercial legal sector and is listed in the current Legal 500 as a Tier 1 barrister.
Previously Matthew had been providing ongoing consultancy services to Temple Legal Protection for some time and therefore has prior insight into the company and established productive relationships with our clients. His knowledge of the commercial legal sector and litigation practice is invaluable to the business and our clients, providing specialist experience to lead the commercial litigation insurance team.
Read articles by Matthew Pascall