Expert Evidence In Professional Negligence Claims

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...