Understanding the role of expert evidence in professional negligence claims
All professional advisers, including lawyers, accountants, brokers, surveyors, engineers and anyone else who offers professional services to the public, owe a duty of care to their clients. This duty requires the adviser to carry out their tasks, not just with reasonable skill and care but the level of reasonable skill and care that would be expected of another competent member of the same profession.
Whenever the professional adviser fails to meet that level of skill and care, and the failure causes loss or damage to the client, then that constitutes grounds for the client to make a claim for professional negligence.
What is an ‘expert witness’?
If someone is suing their former professional adviser, then they are required to establish that (a) the adviser was negligent in that they failed to meet the level of reasonable skill and care that would be expected of a member of the same profession and (b) the client suffered loss and damage as a result. It is point (a) where the expert witness comes in.
It must be stressed that an expert witness owes their primary duty to the court, not to the party by whom they were hired. If a claimant is before the court averring that the defendant was negligent, then how can the court possibly be expected to accept or reject this assertion unless someone is on hand to explain exactly what would be expected of a competent member of the defendant’s profession and whether or not the defendant’s actions fell short of this standard?
Thus, the duty of an expert witness is to help the court to reach a decision by providing an opinion which is both objective and unbiased in relation to the matters within their field of expertise.
Is an expert witness always required?
In short, no. There are circumstances where not only is an expert witness not needed but engaging an expert witness may invite criticism over wasted costs.
For example, if the claim for alleged negligence is against a solicitor or a barrister, then an expert witness is generally unnecessary. This is because the judge, who is a former barrister or solicitor, is assumed to have sufficient knowledge of legal practice to be able to make a decision upon whether or not the claimant’s actions fell short of the required standards. An exception may be carved out in circumstances where the case involves a highly specialised area of legal practice, in which case, it is foreseeable that the court will require the assistance of an expert in this area.
Also, the court does not require the role of an expert witness on matters which the judge is quite capable of deciding on their own. Similarly, the court does not need expert evidence to decide on purely factual matters, e.g., whether or not a defendant supplied information to a claimant that they were required to provide.
Recent relevant case law
The decision as to whether or not to call upon an expert witness has not been made any easier by recent court rulings. In a 2010 case known as “Pantelli Associates”, the judge held that it was wholly inappropriate to bring allegations of professional negligence in a claim unless such allegations were borne out by expert evidence.
However, the following year, in the case of ACD (Landscape Architects) .v. Overall, it was held that the Pantelli case had not established an immutable rule that expert evidence was always required before professional negligence could be pleaded.
Most recently, in 2018, another case called Avondale .v. AJG, the fact that a claimant had not called expert evidence in support of his claim for breach of professional duty was a major factor in the judge dismissing the claim. The court further held that all such claims must be supported by a relevant expert in the field.
The various considerations
Recent case law has not been decisive but has definitely skewed towards the view that expert evidence will generally be required in cases of claims of professional negligence. Ultimately, the decision of whether or not to call an expert will depend on the facts and circumstances of the case. Furthermore, if an expert is to be called, then it is crucial that the right expert is called, i.e. an expert with relevant knowledge in the correct and specific field of professional work.
Timing is also a very significant issue. Depending on the nature and circumstances of the case, it may be advisable to call upon an expert witness at a very early stage in the proceedings. Failure to do so could lead to very costly consequences for the claimant.
If you believe that you may have a claim against your former professional adviser, then the next step is to seek relevant and experienced legal advice from professional negligence solicitors who will be able to handle your case while avoiding expensive mistakes.
If you believe that you may have a claim against your former professional adviser, then the next step is to seek relevant and experienced legal advice from professional negligence solicitors who will be able to handle your case while avoiding expensive mistakes.
For further information and trusted legal advice regarding matters of professional negligence, get in touch with our lawyers in London at Carlsons Solicitors.