Usually, when you allege solicitors negligence, you need to provide the opinion of an expert in that field to support your claim.
The expert needs to review all of the circumstances objectively and give reasons why the defendant fell below the standard of a reasonably competent professional in that situation. Typically both parties serve expert evidence, one saying that the defendant was negligent, the other explaining why the defendant was not negligent, or on occasions a jointly appointed expert might provide a single report. At trial the judge uses this evidence to decide whether the defendant was negligent.
Of course, preparing this evidence is a significant expense over and above the usual exchange of documents and fact evidence and so it can be tempting to leave it until late on before incurring the costs. There may be circumstances where that is acceptable, but the importance of expert evidence generally has been reinforced by a pair of recent cases.
Expert evidence is not generally needed in solicitor negligence claims, since the judge is accepted as an expert on what a competent legal professional ought to have done, but in all other types of claim, whether accountants, valuers, surveyors, architects or insurance brokers, the expert opinion of an industry expert is usually needed.
In 2010, the Pantelli case considered whether a quantity surveyor had been negligent. In that case, the Defendant applied to strike out the claim on the basis that the Claimant had not produced expert evidence to support the claim. The Judge said that it was “wholly inappropriate” to make an allegation of professional negligence where there was no expert input to support the allegation. His point was that it is not the Claimant’s view of whether there was negligence that matters, it is the opinion of a professional in the same field that the court is interested in.
ACD v Overall (2012)
The most recent case to consider the importance of expert evidence was a case in January 2012. This case, ACD v Overall, related to the work of a landscape architect in producing a Landscape and Visual Impact Assessment for the purposes of planning applications.
The landscape architect claimed against a developer for unpaid fees and was met with a counterclaim in professional negligence. The developer’s argument was that the work related to the report was carried out negligently, causing his planning applications to be impaired, which was why he had not paid the bills - but no expert evidence supported that allegation. The landscape architect therefore applied for the counterclaim to be struck out on the grounds that there were no reasonable grounds for it being brought. The developer then decided, after all, to provide some expert evidence, but the issue still came to court to decide who should pay the wasted costs of the strike out application.
The judge considered whether expert evidence is essential in cases of professional negligence and at what stage it should be obtained. He did not think that the Pantelli case laid down a strict rule of practice that expert evidence must be in place before a claim can be brought. In some circumstances a statement of truth alleging professional negligence in a Claim Form could be made even when no expert evidence has been retained, although there must be sufficient for the maker of the statement to make it. Where there are no explanations as to why the party pleading professional negligence has not yet acquired expert corroboration for its allegations, then this may be relevant in relation to costs, but where a case has a relatively low value and there is a sensible prospect of mediation or other amicable resolution, then it may be that it is disproportionate at a very early stage to obtain the expert evidence then.
These cases are a useful reminder that anyone seeking to blame a professional for their loss by way of allegations of professional negligence needs to have independent corroboration of that allegation at trial and, ideally, at an early stage of the case to be confident that the matter can be resolved in their favour at trial. It is sometimes sensible to hold off incurring the costs but generally the sooner it is obtained the stronger the claim will be - and the better the negotiating position. ‘Front-loading’ costs is not ideal, but the results can often be better when the evidence is persuasively marshalled at an early stage. And the costs of defending a strike out application avoided!