Expert Evidence In Lawyers Liability Claims

What caught my eye about this judgment was the comment about the need for expert evidence to establish breach of duty in a lawyer's negligence case.

The claim was always going to be a tall order, alleging negligence by leading firm Leigh Day, which had in turn instructed eminent leading counsel, in its representation of a family at an inquest. Mrs Justice Andrews dismissed the claim in characteristically forthright terms.

At paragraphs 8 and 9 the judge said:

" It is not enough to show that a different solicitor may have taken a different view or a different course, let alone that the client felt that the solicitor could have done more. That is why the court will rarely hold a professional to be in breach of duty in the absence of assistance from a suitably qualified expert who can explain why in his or her opinion the acts or omissions complained of fell below the standard of professional competence that would have been expected in those circumstances. No expert evidence was called in this case.

Of course, not every case of professional negligence requires expert evidence to support it, and there may be cases where the breach of duty is obvious, for example where it is possible to demonstrate, by reference to established authority, that the wrong legal advice was given, or where the solicitor fails to issue proceedings within the limitation period that would otherwise have had a realistic prospect of success. However, this is not such a case."

In claims against other types of professional, it is uncontroversial that expert evidence on breach will be required. However, special principles have applied to claims against lawyers. These are well summarised in Jackson & Powell, at 11-149. Courts do not want experts to tell them what the law is, or to tell them what they personally would have done. In Bown v Gould & Swayne [1996] PNLR 130, Millett LJ commented scathingly on expert evidence in a negligence claim against a conveyancer:

"If it is necessary to assist the judge to understand the proper machinery for the deduction and investigation of title, the proper way to do it is to cite the textbooks such as Emmett, Farrand, Williams and Dart, if necessary supplemented by Law Society opinions. In fact, this is a straightforward case in which I doubt that even such references would be necessary. I deplore the suggestion that it is either helpful or necessary to call evidence from high...