A recent High Court decision has provided practical guidance on the use of expert evidence in professional negligence claims.
Background
In a previous High Court case, a professional negligence claim
against a quantity surveyor was struck out due to the
claimant's failure to produce any expert evidence, despite
three years having passed since the alleged negligent act
(Pantelli v Corporate City Developments). That
case appeared to confirm the general rule that where an allegation
of professional negligence is raised, the allegation has to be
supported in writing by a relevant professional with the necessary
expertise (albeit, in Pantelli, the points arose in an
interlocutory hearing rather than at trial).
In the current case (ACD (Landscape Architects) Ltd v
Overall), the defendant landowners had raised allegations of
professional negligence in their defence and counterclaim to a fee
claim by the claimant landscape architect. The landscape
architect applied to have the defence and counterclaim struck out
on the grounds that no expert evidence had been adduced.
Shortly before the application was heard, the defendant provided
draft expert evidence and the claimant withdrew the strike-out
application, leaving costs as the only issue to be determined by
the Court.
Decision
The Court found that the defendant landowners would have needed
to adduce expert evidence to prove their case in negligence.
Because the defendants had made it clear that they did not believe
that they needed expert evidence and were not intending to secure
such evidence, it was legitimate for the claimant to bring this to
the attention of the Court.
Yet, the claimant's strike-out application would not have
succeeded in full had it proceeded, as the defendants'
counterclaim also contained a claim for breach of contract, which
could not be pursued without expert evidence.
The Court also found that, in this case at least, a strike-out
application was not the most cost-effective way of dealing with a
failure to adduce expert evidence. The claimant could (the
inference being they "should") have raised the issue at a
case management conference, and the Court would most likely then
have given the other party a "reasonable opportunity" to
obtain that expert evidence. The Court's finding on costs
reflected this: the costs of the strike-out application were the
claimant's costs in the case, meaning that the claimant would
not have to pay the defendants' costs, but would only recover
its own costs if it won the case overall.
Importantly, the Court also provided guidance on the use of expert
evidence. Akenhead J commented that "there are obviously
some cases of professional negligence in which expert evidence is
not required". A statement of truth signed by a party
may suffice to support a pleading of professional negligence in
cases where it would be (a) disproportionate to obtain expert
evidence at a very early stage of proceedings as the amount in
issue is small, or (b) there is a sensible prospect of
settlement.
However, there are also situations where it is right for a
defendant to draw the Court's attention to a lack of expert
evidence, for example where the party pleading professional
negligence has (a) made it clear that it does not need expert
evidence, (b) gives a clear impression that it has no intention of
securing expert evidence, or (c) pursues the claim in litigation
for a long time without securing expert evidence.
Comment
It remains the case that most professional negligence
claims will require expert evidence, but the Court has confirmed
that it is "not an immutable rule" that professional
negligence cannot be pleaded "unless and until the claimant
had secured supporting expert evidence".
This decision does, however, potentially widen the scope for
claimants in professional negligence claims to refrain from
adducing expert evidence in support of their case at an early
stage, which could make it more difficult for defendants to take
early steps to clarify and assess the case against them.
However, this decision appears to suggest that claimants can only
safely do so in cases where the amount in issue is small or there
is a sensible prospect of settlement.
Defendants and their insurers now have the comfort of the
Court's guidance as to (a) the circumstances when they can
reasonably raise an issue with a claimant's failure to provide
expert evidence during the course of proceedings (as opposed to at
trial) and (b) the appropriate procedural method of drawing this
issue to the Court's attention. An application for
strike-out may no longer be considered the most cost-effective
approach, at least, not in the first instance although, as was
shown in Pantelli, it remains a weapon in the
professional's armoury.
Further reading:
ACD (Landscape Architects) Ltd v Overall and
Another [2012] EWHC 100 (TCC)
Pantelli Associates Ltd v Corporate CIty
Developments Number Two Ltd [2010] EWHC 3189
(TCC)
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 15/02/2012.
