Expert evidence in professional negligence cases

The recent decision in Avondale v AJG highlighted the significance of expert evidence in professional negligence claims. In light of Avondale v AJG, this article revisits modern authorities regarding expert evidence, and considers the issues that those pursuing or defending a professional negligence claim should be aware of with regards to expert evidence.

Summary

Most claims for professional negligence will be supported by expert evidence on the question of whether the conduct of the professional met the relevant standard of care. Expert evidence is not required in all cases of professional negligence, however, and the risk of not adducing expert evidence when it might assist the court must be balanced with the risk of being criticised for wasting costs.

Avondale v AJG has brought back into focus the issue of when, and whether, expert evidence is needed in a professional negligence case.

Basic principles

Central to the decision as to whether or not to call expert evidence at all should be consideration of what will assist the court. The court is unlikely to be assisted by expert evidence where the judge is likely already to have the necessary expertise (eg cases of solicitors’ negligence). Similarly, the court is unlikely to be assisted where the alleged error is so obvious that an expert witness is not necessary, or where an expert is really only expressing his/her personal opinion as to what (s)he would have done in the position of the defendant. Some key points to bear in mind are:

• Expert evidence is not required in all cases of professional negligence: Solicitors and barristers’ negligence cases, for example, rarely require expert evidence as it is assumed that the judge has the necessary expertise to consider the issues. Expert evidence could still be necessary when the case involves a specialist or niche area of law (Edge Ellison (A Firm) & Anr v Active Rights Management Limited & Anr).
• The courts do not permit expert evidence on issues that the court should decide itself: In Change Red Limited v Barclays Bank, expert evidence regarding the definition of “turnover” in a contract was held not admissible, because this was a matter for the judge to determine.
• Factual allegations do not require expert evidence: In Darby Properties Limited v Lloyds Bank, the claimant was not permitted to present expert evidence in support of an allegation that the bank had failed to provide the necessary information about the risks associated certain products, which required factual evidence instead of an expert’s opinion.
• The court needs to hear from the right expert for the matter: It may seem obvious, but careful thought should be given to what kind of expert evidence is needed on particular issues, and who can most appropriately give that evidence. At first instance (although the decision was overturned on appeal) in the accountant’s negligence case of Mehjoo v Harben Barker the court at first instance preferred the claimant’s expert evidence despite the fact that the claimant’s expert had never worked as a generalist chartered accountant; he had qualified and worked as a lawyer before moving to KPMG where he was Head of KPMG’s Taxes Group (see our article on the appeal decision here). Although the Court of Appeal re-focused on what a reasonably competent generalist accountant would have known or done at the relevant time, the court’s comments at first instance highlight how finely balanced the choice of expert can be, depending on the subject-matter.

To call or not to call?

The decision as to whether or not to call an expert witness, and if so when and in respect of what matters at issue, requires careful thought and depends very much on the facts of the matter at hand. Recent case law has emphasised the fact-specific nature of what expert evidence will be considered to assist the court. As to timing, it might be disproportionate costs-wise to obtain expert evidence at a very early stage in the case, particularly if the amount in issue is small, or settlement is likely. Conversely, in different circumstances a claimant could be criticised for failing to obtain expert evidence at a sufficiently early stage, and there could be costs consequences.

In the case of Pantelli Associates, it was held that (save for cases of solicitors’ negligence) it is “standard practice that, where an allegation of negligence is to be pleaded, that allegation must be supported (in writing) by a relevant professional with the necessary expertise”. The judge held that it was wholly inappropriate to allege professional negligence where there was no “expert input” to support the allegation. However, later cases such as ACD (Landscape Architects) v Overall confirmed that Pantelli Associates had not established an immutable rule that professional negligence could not be pleaded unless and until the claimant had secured supporting expert evidence.

Recently illustrating just how difficult it can be to assess what might assist the court, is the broker’s negligence claim of Avondale v AJG. In this case, the fact that the claimant had not called expert evidence to establish breach of duty played a significant part in the judge’s dismissal of the claim. Applying Pantelli Associates, the court held that, save for exceptional cases, an allegation of professional negligence must be supported in writing by a relevant professional with the necessary expertise.

Avondale stands in contrast to the comments made in the earlier broker’s negligence case of Involnert v Aprilgrange Ltd. In Involnert, expert broking evidence had been called, but the court’s view was that this added little benefit and made it clear that it should not “…be automatically assumed that in every case where an allegation of negligence is made against an insurance broker expert evidence is reasonably required to resolve the proceedings; and where expert evidence is necessary, careful thought always needs to be given to its legitimate and useful scope…”.

Despite the scepticism expressed by the judge in Involvert, who queried how much assistance expert evidence gave when the expert was simply expressing an opinion on already established legal principles, in Avondale, the judge found it “striking” that the claimant sought to assert that the defendant fell below the standard of competent insurance brokers, without supporting their assertion with any expert evidence of the standards of the profession. Parties might now be tempted to err on the side of caution, only deciding not to call expert evidence to support an allegation of professional negligence in limited circumstances.

Conclusion

As the authorities make clear, whether or not to call expert evidence on particular issues may be a vexed question. Whether or not the court is likely to be assisted by expert evidence on a point is likely to be a matter of common sense, based on the circumstances, but may not be obvious.

Whilst it may seem cheaper to proceed without expert evidence, the consequences of not adducing expert evidence where the court may later find such evidence would have assisted can be more serious, as the claimant found in Avondale.

The question of whether expert evidence is necessary depends on the facts. Parties should look to address whether it is necessary, and its scope, at an early stage to avoid costly issues arising at a later date.