After Pantelli, it should be clear when expert evidence is required in professional negligence cases, i.e. almost invariably. But what happens when the parties cannot agree on this supposedly obvious point? This article discusses the approach the courts have taken in recent years in order to make sure you will be equipped to deal with any such disagreements if and when they arise.
It is a well-known principle, as espoused by Coulson J in the case of Pantelli1, that where a party wishes to advance allegations of professional negligence, those allegations must be supported by expert evidence. As a reminder, in that case, the court struck out proposed amendments to a defence and counterclaim which purported to be allegations of professional negligence but which were insufficiently particularised and were not supported by expert evidence.
Even in Pantelli, Coulson acknowledged that there would be instances where, in the context of claims against construction professionals, the court might not be assisted by expert evidence (essentially the instances set out in the relevant section of Chapter 6 of Jackson & Powell). Although, in fact, the most important category of such cases can really be characterised as instances where the expert evidence that has been adduced by a party to support its case can properly be ignored by the court. This might because there is no “logical basis” for the body of expert opinion being put forward; in such instances, the court can disregard even an honestly-held opinion because it amounts to no more than a personal opinion about what the particular professional giving the evidence would have done in similar circumstances to those before the court. The evidence does not elucidate the received practice of the profession under scrutiny – effectively, the test for whether the relevant conduct was that of a reasonable architect, surveyor or project manager.
However, this highlights one of the tensions that the court and the parties must regularly grapple with – surely the parties (or at least one of the parties) will need to obtain at least an outline expert report before anyone can decide whether the evidence to be provided is going to assist the court? The best course would probably be to get an indication from an intended expert was to whether he or she can in fact assist and, of course, make sure that the parties have properly considered whether the allegations in question have a technical dimension and go to identifying an established practice, which is more than just a matter of fact and law. The ultimate penalty for a failure to consider the need for evidence at this stage would be that the obtaining party would not be entitled to recover its costs of the evidence from the other side.
This issue will not arise in the other exception to the general rule noted in Pantelli, is where there is a “glaring error”, such as an architect’s drawing for a two-storey house which omitted a staircase. The key in such cases is that no professional expertise is required to determine whether a professional’s conduct has fallen below a reasonable standard – because it obviously has. Putting it another way, the court is not actually need to take expert opinion into account when considering whether the professional exercised his or her judgment or discretion appropriately because even a lay person would have noticed the mistake. However, as soon as you need to ask “but would this category or type of professional have noticed that mistake?” then it is likely that expert evidence is, prima facie, required to answer that technical question.
Furthermore, in Wattret v Thomas Sands  EWHC 3455 (TCC), Alexander Nissen QC sitting as a Deputy High Court Judge approved the court’s finding in Sansom v Metcalfe Hambleton  PNLR 542 that as a matter of policy, “a court should be slow to find a professionally qualified man guilty of a breach of his duty of skill and care towards a client (or third party) without evidence from those within the same profession as to the standard expected on the facts of the case and the failure of the professionally man to measure up to that standard”. Essentially, where a professional’s reputation is at stake, then it will only be in rare cases that no expert evidence is required.
Akenhead J also raised the point in ACD (Landscape Architects) Ltd v Overall  EWHC 100 (TCC), that as pleadings must always be supported by a statement of truth there will be a tension wherever a lay person is being asked to confirm the truth of allegations made in pleadings criticising the conduct of a professional because the lay person cannot say whether the criticisms are correct.
He also pointed out that the court will naturally have latitude where a defendant, who wishes to raise allegations of professional negligence in a counterclaim, has no expert evidence because they have only had a few weeks to put that counterclaim together. Obviously, you would hope that such matters would have been properly raised and ventilated pre-action but there could easily be situations were a defendant has not been proper notice of a claim. Indeed, Akenhead J said that there may well be cases in which it would be appropriate for parties to delay obtaining expert evidence – for instance, where the value of the claim is very low or there are good prospects of settlement, regardless of whether there is expert evidence or not. However, clearly, in many instances that a lack of expert evidence will be a bar to settlement.
Turning now to consider why it is important that expert evidence is obtained to support allegations of professional negligence, as can be seen from Pantelli, the problem resulting from a lack of expert evidence is that the absence of evidence goes hand in hand with (and probably causes) a lack of proper particularity in a party’s pleaded case. Vague pleadings are likely to make it difficult for the professional to respond and to know how to guide his/her case. Another result of poor pleadings will often be that more money is spent in getting to the bottom of the claimant’s case or otherwise in having to pursue a strike out application.
It can be seen from the authorities post-Pantelli that the court is likely to want to take more conciliatory approach to the question of whether expert evidence should be provided. Therefore:
- Be pro-active!! - Akenhead J in ACD v Overall made clear that the need for expert evidence in any case is something that should be sorted out at an early stage and that the issue should be canvassed at the first CMC so that the court could “given a nod” that the parties would then follow (if they know what’s good for them). Akenhead J said that this would enable the parties to deal with the requirement for expert evidence without it becoming “contentious” – however, it would seem that the court’s view would only need to be canvassed in circumstances where the parties were not ad idem about the need for such evidence in the first place.
- Therefore, where the parties are going to have to have what will be (let’s face it) an argument over expert evidence at the first CMC, make sure you have made your position clear to the other side in correspondence and/or any documentation served for the hearing. It might be wise to cite ACD v Overall itself so that the court appreciates the importance of the “nod” that it is being asked to give.
- Akenhead J’s view was that taking such a pro-active approach would be likely to avoid the need for potentially costly strike out applications. However, making such an application should still be in the cadre of tactics that might be employed by a defendant, where a claimant is (i) delaying in getting evidence, in spite of having been given permission to obtain it or (ii) where they insist no evidence is required, in spite of the court’s previous indication.
- However, taking a pro-active approach is even more important in the days of costs management. Determining the issue early will allow the parties to know where they stand on the issue of costs and also spend money on the expert evidence itself rather than an application to whip the other side into shape at a later date.
- In the case of Wattret v Thomas Sands , the court was asked to decide whether the defendant, chartered surveyors whose services had arguably strayed into the preserve of a solicitor (or certainly a professional providing guidance on dispute resolution services), should be permitted to adduce expert evidence. The claimant argued that expert evidence was not necessary to assist the court because there ought to be no difference between the standards applicable to a solicitor and to a chartered surveyor trespassing into that role. On that basis, the questions for the court were all questions of fact and law (as in a solicitor’s claim) and not matters of practice.
- The court’s measured decision was that expert evidence would probably be required but that the defendant should provide a list of issues by reference to the pleadings which identifies the specific points on which it intends to provide expert evidence and what the relevant question for the expert should be. The parties should then endeavour to agree the list and, in default, should refer to the list to the court for determination on paper.
- This is perhaps a rather too restrictive way of dealing with expert evidence in cases where experts will have to deal with a raft of issues, which it might not be easy to define without further investigation. That is not to say that it would not be possible to provide such questions but it might be more workable for the parties to simply draw up a more generalised list of issues or topics that expert evidence should cover without requiring the parties to submit specific questions to be asked.
In summary, it is likely to be the norm that expert evidence will be required and permitted by the court without particular restriction. However, where there is a dispute as to whether expert evidence is required, then it is clear that the best course would be for the parties to be pro-active and raise the issue between themselves and before the court as early as possible. Hopefully, the court will then give the right nod!!