My top 10 takeaways from the CLAN Professional Negligence Conference courtesy of Deloittes and Annecto Legal:
1. Causation and damages are bigger hurdles than liability. This takes you to where does a deal lie at mediation.
2. Establishing the counterfactual position in an audit claim is technical. Better not go there and instead settle at mediation.
3. Claims against tax advisers are increasing. Reputation is key, mediation is confidential.
4. Costs play an increasing part in settlement for litigants. Advisers may have their own stake.
5. ATE insurance policies are usually confidential. At a mediation they are rarely disclosed. This may be waived by agreement. Something to consider before a mediation.
6. If a DBA is void, a client need not pay their solicitor. Rarely raised at mediation.
7. A solicitor must tell their client if they have previously advised them negligently. Mediators must question advisers carefully.
8. There is an Adjudication Pilot for Professional Negligence Claims. Consider Mediation as an alternative.
9. Some prof neg solicitors are (like me) pro private caucuses at a mediation just between parties if the circumstances lend themselves.
10. Tricky commercial topics are best discussed with everyone well fed and watered- thanks to the hosts.