The case of  (1) Kenneth Alex Wattret (2) Laurie Grace Wattret v Thomas Sands Consulting Ltd [2015] EWCH 3455 (TCC) highlights the use of expert evidence, in particular within proceedings relating to the provision of professional services by a firm of chartered quantity surveyors.

A CMC for this case was heard before Mr Alexander Nissen QC. The parties agreed all issues save for the question of expert evidence. The Defendant’s application was for permission to use expert evidence from a quantity surveyor with expertise in dispute resolution. The Claimant opposed the application.

Background

The Claimants engaged the services of the Defendant, a firm of chartered quantity surveyors with expertise in quantity surveying and dispute resolution in construction matters.

The Defendant was used both before and in an arbitration matter between the Claimants and their builders, concerning a final account dispute amongst other issues. The result of that arbitration was an Award in favour of the builders and against the Claimants.

The Claimants then brought an action against the Defendant for damages relation to the provision of its services. Numerous allegations were made against the Defendant including:

  • Failure to advise on the costs of arbitration
  • Failure to advise the Claimants to obtain ATE insurance
  • Failure to take legal advice

All allegations were denied raising issues of liability, causation and quantum. A key point raised by the Defendant was that at all times settlement negotiations were controlled by the Claimants.

The Claimants argued that the Defendant held itself out as being as least or even better qualified to conduct construction law cases than qualified legal professionals. As such, it was implied that the standard of care owed to them from the Defendant ought to be measured against the reasonably competent legal professional with experience of arbitration and adjudication proceedings; and matters relating to construction law, namely solicitors.

Understandably, the Defendant objected only accepting that the services provided would be with reasonable skill and care of a skilled chartered quantity surveyor's holding itself out as competent to advise and represent in adjudications and arbitrations.

Issues Considered

Mr Nissen QC had to consider whether expert evidence was required in this case, if so, who should that expert be and whether there ought to be any restrictions.

The Defendant argued the following points:

  • An allegation of professional negligence must be supported by a relevant professional with the necessary expertise, in this case a chartered quantity surveyor .
  • There was a clear difference between the duties and standard of care between that of a solicitor and that of a chartered surveyor based both upon the different codes of conduct and completely different training.
  • It was not appropriate for the Defendant to explain the differences between the duties as this would likely pre-empt what the expert would say.

The Claimants’ raised the following points:

  • There is no difference in principle between the standards of a solicitor and a quantity surveyor experienced in disputes and was for the Defendant to highlight the distinctions within this case.
  • Expert evidence should be narrowed to what was strictly required and the Defendant failed to explain how there is a difference between the two professions.
  • If the court grants the use of an expert it should be a single joint expert as the expert evidence is unlikely to be determinative when the case was likely to turn on the contested factual history.

Decision

It was found that this was not a solicitors’ negligence case but a claim against a firm of quantity surveyors. Expert evidence was needed and necessary to judge the Defendant against the standard of a reasonable quantity surveyor providing dispute resolution services.

However, he did agree that there should be restrictions on such evidence. The Defendant was to provide a list identifying the specific points on which it intends to provide expert evidence to the Claimant in reference to the pleadings.

The Claimants would have an opportunity to respond to the list. Should agreement not be reached between the parties then the matter be referred to Court for determination on paper.

Implications

The finding in this case highlights that there is no automatic right for expert evidence and parties need to consider the specific issues such evidence will address. Asserting that the Defendant held itself out as another profession i.e. as a solicitor does not imply the standard upon which the court will judge the Defendant’s action.