UK: Professional Negligence: Were the Defendant’s Allegations of Negligence Properly Pleaded?

Last Updated: 13 January 2011
Article by Dr. Stacy Sinclair

The case of Pantelli Associates Ltd v Corporate City Developments Number Two Ltd [2010] EWHC 3189 (TCC), which came before Mr Justice Coulson on 2 December 2010, provides a useful reminder of what the CPR requirement that a claim must consist of "a concise statement of the facts on which the claimant relies" means.

The Facts:

In September 2007 Corporate City Developments Number Two Ltd ('CCD') engaged Pantelli Associates Ltd ('Pantelli'), a firm of quantity surveyors, in relation to works at two building projects in North London. Pantelli carried out its services; however, neither project received planning permission and no fees were paid to Pantelli. Ultimately, Pantelli commenced proceedings seeking some £98,000 for unpaid fees.

In its Defence and Counterclaim, CCD raised (for the first time) vague allegations of poor performance and professional negligence. The counterclaim was for some £300,000.

Prior to the case management conference on 5 October 2010, an unless order was agreed by consent that unless CCD amended its Defence and Counterclaim by 4pm on 12 November 2010, providing proper particulars of any alleged defence or cause of action, certain paragraphs of the Defence and Counterclaim would be struck out.

CCD put forward a completely new document entitled 'Amended Defence and Counterclaim'. Pantelli's principal criticism of this document was that the allegations were wholly unsupported as CCD had simply added the words "failing to" or "failing adequately or at all to" as a prefix to each contractual term, thus turning the obligation into a breach of professional negligence. For example, the particulars of breach merely stated:

  • "failing adequately or at all to advise on feasibility and procurement"
  • "failing to prepare adequate and/or accurate initial budget estimates"

Accordingly, Pantelli brought an application to strike out the allegations of professional negligence and the counterclaim as CCD had failed to comply with the unless order.

The Issue:

In its allegations of professional negligence, did CCD's particulars of claim comply with the Civil Procedure Rules ('CPR') and the unless order which had been agreed between the parties?

The Decision:

Mr Justice Coulson held that CCD's particulars of claim were 'hopelessly inadequate' and should be struck out in accordance with the terms of the unless order.

He found that the amendments made to the Defence and Counterclaim did not meet the test set out in CPR 16.4(1)(a) which states that the particulars of claim must include: "a concise statement of the facts on which the claimant relies." Mr Justice Coulson stated that it would have been impossible for a solicitor to take a witness statement from those involved as no details had been provided for a prospective witness to accept or dispute.

He held that neither the case of professional negligence nor the pleading of causation and loss had been proper pleaded.

Furthermore, no expert evidence of any kind had been provided to suggest that the work carried out was inadequate or fell below the standard to be expected of an ordinarily competent quantity surveyor. Mr Justice Coulson held that, save in cases of solicitors' negligence:

" is standard practice that, where an allegation of professional negligence is to be pleaded, that allegation must be supported (in writing) by a relevant professional with the necessary expertise. That is a matter of common sense: how can it be asserted that act x was something that an ordinary professional would and should not have done, if no professional in the same field had expressed such a view? CPR Part 35 would be unworkable if an allegation of professional negligence did not have, at its root, a statement of expert opinion to that effect."


As Mr Justice Coulson pointed out, this application raised a potentially important point as to the proper practice for the pleading of professional negligence claims.

This case is therefore a timely reminder that expert evidence is essential for professional negligence claims:

"...Not only is it simply not good enough to turn a positive contractual obligation into an allegation of professional negligence by adding the words "failing to" to the obligation, but it is also wholly inappropriate to do so in circumstances where there is no expert input to allow CCD [the Claimant] to make such an allegation in the first place."

Mr Justice Coulson also pointed out that barristers must be mindful of paragraph 704 of their Code of Conduct which prevents them from drafting any document which contains "any statement or fact or contention which is not supported by the lay client or by his instruction [or] any contention which he does not consider to be properly arguable". Here, a barrister cannot know whether an allegation of professional negligence is properly arguable or not unless expert evidence has been obtained.

This article is one of a series contributed by Fenwick Elliott to the Building website. To see further articles in this series please go to

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Dr. Stacy Sinclair
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