What is a ‘Preliminary Opinion’?
When a landowner makes a legal expenses insurance claim in relation to a boundary dispute or to a right of way dispute, the insurer will call for a preliminary opinion from an expert in boundary demarcation and disputes. The purpose of the preliminary opinion is to enable the insurer to decide whether to accept or reject the claim.
If the insurer accepts such a claim then it is taking on the risk that it might lose a very expensive court case. The insurer will therefore want to commit itself only to spending a modest sum in assessing the case prior to making the decision to accept or reject the claim: the insurer will not accept a claim on a case that it thinks it is unlikely to win.
Service offered
The Expert will assess the case as cheaply as possible, involving:
- an examination of the documentary evidence (see leaflet JMB32),
- an on site consultation and inspection, with measurements kept to a minimum,
- a brief report in the form of a business letter.
Expected outcome
One of two outcomes will result from this exercise. The expert's preliminary opinion will be seen by the insurer either as favourable, or as unfavourable.
If the insurer finds the preliminary opinion favourable then it will accept the client's claim and take on the responsibility for, and the risks involved in, fighting the case on behalf of the client. The insurer will instruct solicitors and will most likely instruct the expert to produce a Civil Procedure Rules Part 35 Expert Report and to give evidence in court.
If the insurer finds the preliminary opinion unfavourable (it is not unknown for the insurer and the expert to disagree as to whether or not the case is winnable, and it is the insurer who has the final word on this) then the insurer will reject the claim.
If the insurer rejects the claim then the client must decide whether to pursue the case at his own expense, whether to seek some alternative form of dispute resolution, or whether to concede to his neighbour.
A preliminary opinion cannot be relied upon as expert evidence should the case later proceed to court.
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