In Pantelli v Corporate City Developments1, proposed amendments to a defence and counterclaim were struck out where they did not comply with the requirement of the CPR to provide a “concise statement of the facts” relied on (CPR r.16.4(1)(a)). The decision also confirmed that where an allegation of professional negligence is raised, that allegation must be supported by appropriate written expert evidence.
The claimant (Pantelli), a firm of quantity surveyors, had entered into a contract with the defendant (CCD) for two building projects in North London. Although the work was carried out over the next two months, ultimately neither project received planning permission. Pantelli sought £98k in unpaid fees from CCD. The claim for fees was the subject of a written compromise agreement which was not honoured by CCD and Pantelli commenced proceedings. CCD’s Defence and Counterclaim raised, for the first time, vague allegations of poor performance and professional negligence and sought to recover £300k from Pantelli.
The court had previously ordered CCD to provide proper particulars of the allegations of negligence, causation and loss, failing which, that part of CCD’s Defence and Counterclaim alleging poor performance by Pantelli and resulting loss to CCD would be struck out.
CCD’s counsel admitted that the allegations of professional negligence contained in CCD’s Amended Defence and Counterclaim had been formulated by taking each contract term and then adding the words “failing to” or “failing adequately or at all to” as a prefix to each obligation, thereby turning the obligation into an allegation of professional negligence.
The court ruled that the particulars in the Amended Defence and Counterclaim were “hopelessly inadequate”, did not meet the test in CPR rule 16.4(1)(a) and remained wholly unparticularised. It was impossible to work out from the generic and generalised allegations what matters were being alleged against Pantelli, and as such the particulars of breach, loss and damage did not constitute a proper pleading of a case of professional negligence and were struck out in accordance with the terms of the unless order.
The court also noted that CCD had obtained no expert evidence of any kind to support its contention that the work was carried out inadequately, or was in some way below the standard to be expected of an ordinarily competent quantity surveyor.
It 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. It was wholly inappropriate for CCD to turn a positive contractual obligation into an allegation of professional negligence in circumstances where CCD had obtained no expert input on the allegation in the first place.
CPR Part 35 (on Experts) would be unworkable if an allegation of professional negligence did not have, at its root, a statement of expert opinion to that effect.