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Professional negligence

A recent High Court decision has provided practical guidanceon the use of expert evidence in professional negligence claims.

Background

In a previous High Court case, a professional negligenceclaim against a quantity surveyor was struck out due to the claimant's failureto produce any expert evidence, despite three years having passed since thealleged negligent act (Pantelli v Corporate City Developments). That caseappeared to confirm the general rule that where an allegation of professionalnegligence is raised, the allegation has to be supported in writing by arelevant professional with the necessary expertise (albeit, in Pantelli, thepoints arose in an interlocutory hearing rather than at trial).

In the current case (ACD (Landscape Architects) Ltd vOverall), the defendant landowners had raised allegations of professionalnegligence in their defence and counterclaim to a fee claim by the claimantlandscape architect. The landscape architect applied to have the defence andcounterclaim struck out on the grounds that no expert evidence had beenadduced. Shortly before the application was heard, the defendant provided draftexpert evidence and the claimant withdrew the strike-out application, leavingcosts as the only issue to be determined by the Court.

Decision

The Court found that the defendant landowners would haveneeded to adduce expert evidence to prove their case in negligence. Because thedefendants had made it clear that they did not believe that they needed expertevidence and were not intending to secure such evidence, it was legitimate forthe claimant to bring this to the attention of the Court.

Yet, the claimant's strike-out application would not havesucceeded in full had it proceeded, as the defendants’ counterclaim alsocontained a claim for breach of contract, which could not be pursued withoutexpert evidence.

The Court also found that, in this case at least, astrike-out application was not the most cost-effective way of dealing with afailure to adduce expert evidence. The claimant could (the inference being they“should”) have raised the issue at a case management conference, and the Courtwould most likely then have given the other party a “reasonable opportunity” toobtain that expert evidence. The Court's finding on costs reflected this: thecosts 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, butwould only recover its own costs if it won the case overall.

Importantly, the Court also provided guidance on the use ofexpert evidence. Akenhead J commented that "there are obviously some casesof professional negligence in which expert evidence is not required". Astatement of truth signed by a party may suffice to support a pleading ofprofessional negligence in cases where it would be (a) disproportionate toobtain expert evidence at a very early stage of proceedings as the amount inissue is small, or (b) there is a sensible prospect of settlement.

However, there are also situations where it is right for adefendant to draw the Court's attention to a lack of expert evidence, forexample where the party pleading professional negligence has (a) made it clearthat it does not need expert evidence, (b) gives a clear impression that it hasno intention of securing expert evidence, or (c) pursues the claim inlitigation for a long time without securing expert evidence.

Comment

It remains the case that most professional negligence claimswill require expert evidence, but the Court has confirmed that it is "notan immutable rule" that professional negligence cannot be pleaded"unless and until the claimant had secured supporting expertevidence".

This decision does, however, potentially widen the scope forclaimants in professional negligence claims to refrain from adducing expertevidence in support of their case at an early stage, which could make it moredifficult for defendants to take early steps to clarify and assess the caseagainst them. However, this decision appears to suggest that claimants can onlysafely do so in cases where the amount in issue is small or there is a sensibleprospect of settlement.

Defendants and their insurers now have the comfort of theCourt's guidance as to:

1.the circumstances when they can reasonably raise an issuewith a claimant's failure to provide expert evidence during the course ofproceedings (as opposed to at trial)

2.the appropriate procedural method of drawing this issue tothe Court's attention.

An application for strike-out may no longer be consideredthe 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.

This article first appeared in Law-Now, CMS Cameron McKenna'sfree online information service, and has been reproduced with their permission.For more information about Law-Now, click here.

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