Duncan Greenwood is a Partner at DAC Beachcroft LLP, a global legal practice with offices across Europe, Asia Pacific, and Latin America focusing on insurance, health, and real estate sectors. He is a professional indemnity lawyer who has been defending claims against professionals for the last 25 years -- leading the professional property practice in the UK. Duncan has dedicated his entire career to helping surveyors with his profound understanding of the industry and regulatory frameworks around it.
Getting Involved in a Property Claim
When asked about at what stage he gets involved in a property claim, Duncan says that there is no one answer to that.
“Typically, from a traditional perspective, there are some insurers out there,” he explains. “I'm talking about professional indemnity insurers that have either third-party arrangements for claims handling, or adjusting themselves. Some only send out instructions to lawyers when litigation starts. By that stage, one tends to find that positions are firmly entrenched already.”
“Whilst you can give advice on the commercial and technical merits, and strategic input, the ability to actually nip the claim in the bud or find a solution, is long gone,” he continues. “Even within our business, we encourage all our people to talk to us if there's an issue before it becomes a problem, let alone a claim. I think early collaboration is often a far better and effective tool than simply putting the shutters up and pushing the claimants towards solicitors and mitigation.
Good Client Communication
Duncan agrees that the first couple of interactions with the client are absolutely crucial to the tone of how a complaint or claim will pan out.
“I think when you're dealing with consumers it's really important from the very outset to demonstrate a level of humanity and communication. From what I see, it’s an equal partnership. Sometimes, a complaint will actually not be made, if it will be more a minor criticism and a shrug of the shoulders, if the original process has been set up correctly and humanised in terms of what people are expecting out of it and what the survey is doing.”
“I know that there's always this risk and reward issue around,” he goes on. “One can't bend over backward and spend hours and hours for the price, etc. But, I do think communication and making sure that the record is made is really good practice. Managing an issue properly and proactively actually adds to the goodwill.”
How to Respond to a Claim
In the case that a surveyor receives a complaint, Duncan offers a piece of helpful advice.
“If we're talking about a claim, obviously notify their insurer straight away, so there can be no issues down the line in terms of availability of insurance, in terms of the complaint or claim was first articulated,” he says. “Obviously, one doesn't wish to make any formal admissions because insurers don't like that. I think ensuring that all the written documents and files of papers and digital photographs and videos are available and retained, preserved.”
“Open a dialogue with the complainant to better understand what the issue is. Sometimes, at the very outset of the defect claim, the original communications are slightly unclear and opaque. So I would say don't jump to the assumption that a formal claim is coming down the line. Why not go out on-site and have a conversation?”
How Claims Affect the Insurance
Duncan assures surveyors that reporting a complaint to their insurance doesn’t necessarily go on record.
“When some insurers take the view that if it's not a claim, it's merely a complaint,” he explains. “It doesn't even qualify for being notified and making a kickback. Insurance language differentiates between claims, which is essentially a very unequivocal comment that there's an intention to seek redress and compensation.”
“All in all professional indemnity policies are claims made policies, which means that when the claim lands that particular policies are triggered. But because of the claims made, these policies also have a built-in mechanism whereby a circumstance is also recognised. The circumstance is usually an intimation of an intention to bring a claim in the future without actually articulating it straight out.”
Collecting Evidence and Documentation
Still, Duncan urges surveyors to document records of their evaluation and methodology at their service levels.
“It's not just easy for me,” he explains. “If one ever gets to court, and the judge is having to determine something on the basis of oral witness evidence, judges, nine times out of 10, will prefer the consumer's count. The logic behind that is that it's the consumer’s one transaction, so that recollection is likely to be better than the professional who's dealing with many transactions.”
“It's all very well having fancy gizmos. But if you're not utilizing information that's providing properties potential banana skin. And if you're not capturing the information you want, it's also banana skin. It's always good to have a drone, but they're not looking at the footage, in any great depth. So it's a risk if you're going to do that, and preserve the information without having looked at it. What are you doing? What service are you providing to who? Stick to your core competency.”