UK: Expert Evidence In Professional Negligence Claims

Last Updated: 22 February 2012
Article by Rebecca Reidy and Martin Fox

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.

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