Expert evidence, to support an accusation of negligence against a professional, will not always be needed in the early stages of a claim following decisions in two recent court cases.
Usually, a client accusing a professional of negligence would be expected to provide expert evidence from an independent witness if their claim is to succeed. However this can be expensive process and new guidance from the court suggests that claimants do not always need expert evidence, particularly in the early stages of a claim if it is low value, or there is a reasonable chance that the claim can be settled through mediation.
There is a risk that the new guidance could lead to an explosion in negligence claims against professionals – as claimants do not have to go to the expense of providing expensive corroborative evidence at the outset. In cases of negligence against a solicitor, expert evidence will rarely be needed as the judge is accepted as an expert on solicitors’ professional competence.
In Pantelli v Corporate City Developments in 2010 a quantity surveyor was accused of negligence – however the case was struck out by the judge, who said it was ‘wholly inappropriate’ to make an accusation of professional negligence without evidence to back it up.
However, in ACD v Overall in 2012, where a landscape architect claimed against a developer for unpaid fees and the developer counterclaimed with an accusation of negligence, the judge provided guidance on circumstances where expert evidence may not be needed – and at what stage it should be produced:
- Expert evidence is not required before a case can be brought – despite the decision in Pantelli – and a ‘statement of truth’ could be provided instead.
- Failing to provide expert evidence may be relevant in relation to awarding costs – but if there is a sensible prospect that the claim may be settled through mediation, or the case is low value, it may be disproportionate to seek expert evidence at an early stage.
- Expert evidence is still likely to be needed if a claim of negligence is to succeed in court.
“This is good news and bad news for professionals facing accusations of negligence,” says James Burgoyne, Director, Brunel Professional Risks. “On a positive note it gives professionals and their insurers clarity on when expert evidence is needed if they are facing a claim for negligence – on the other hand it lowers the cost of bringing a claims, which means professionals could face an explosion in the number of claims they face from disgruntled clients.”
An increase in small claims could cost firms in terms of their insurance excesses, and place additional cost pressure on insurers in terms of high frequency attritional losses.