Professional negligence – Quantity surveyor – Expert evidence – Claimant bringing proceedings against defendant quantity surveyors for alleged negligent advice in connection with arbitration – Defendnt applying to adduce expert evidence – Whether expert evidence being necessary– Application granted
The claimants were the freehold owners of a property at 28, Burkes Road, Beaconsfield, Buckinghamshire. The defendant was a firm of chartered quantity surveyors with expertise in quantity surveying and dispute resolution relating to construction matters. The claimants brought proceedings seeking damages from the defendant in contract and tort in relation to the provision of professional services. The defendant had acted for the claimants both before and in an arbitration between the claimants and their builders in relation to a building project on their property. The arbitration resulted in an award in favour of the builders and against the claimants.
The claimants contended that the defendant had given them over-optimistic views of the strength of their position in the arbitration, failed to appreciate potential problems, failed to advise that the risks outweighed the benefits, failed to put forward offers of settlement, failed to advise on procedures available through the NHBC or ADR generally, failed to advise on the costs of the arbitration, failed to advise the claimants to obtain ATE insurance, instructed a quantity surveyor within the defendant to act as the expert and failed to take legal advice. The defendant denied all the allegations.
At a Case Management Conference, the defendant applied to adduce expert evidence from a quantity surveyor with expertise in dispute resolution, arguing that it was standard practice that an allegation of professional negligence had to be supported by a relevant professional with the necessary expertise. No compelling reason had been advanced for departing from the general rule. Moreover, expert evidence was necessary assist the court and enable it to determine the pleaded issues.
The application was opposed by the claimants who contended that, on the facts of this case, there ought to be no difference in principle between the standards of a solicitor and a quantity surveyor experienced in dispute services. On that basis, the court should be able to determine the case without expert evidence. If there was a theoretical distinction, it was incumbent on the defendant to identify the practical distinctions on the facts of this case.
Held: The application was granted
(1) The starting point was CPR 35.1 which restricted expert evidence to that which was reasonably required to resolve the proceedings. The underlying policy objective of that rule was to reduce the incidence of inappropriate use of experts to bolster cases. It also referred to evidence required “to resolve the proceedings” rather than “to resolve any issue within the proceedings”. It was the duty of parties to ensure that they adhered to both the letter and spirit of that rule and it was the duty of the court, even if only for its own protection, to reject firmly all expert evidence that was not reasonably required to resolve the proceedings. The court had to ask whether, looking at each issue, it was necessary for there to be expert evidence before that issue could be resolved, in which case it had to be admitted. If the evidence was not necessary but would be of assistance, the court would be able to determine the issue without it. In that case, the question was whether, in the context of the proceedings as a whole, expert evidence on that issue was reasonably required to resolve the proceedings: British Airways plc v Spencer [2015] EWHC 2477 (Ch) applied.
(2) In the present case, it was necessary to have expert evidence. 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 qualified man to measure up to that standard. It was not an absolute rule but, unless it was an obvious case, in the absence of the relevant expert evidence, the claim would not be proved: Sansom v Metcalfe Hambleton [1998] 2 EGLR 103 applied.
(3) The exception to be derived from Bown v Gould & Swayne [1996] 1 PNLR 130 in relation to solicitor’s negligence cases did not apply to the present case which was a claim against a firm of quantity surveyors. On the facts, there might be instances where there might be differences between what a legal practitioner would do or say in a given situation and what a quantity surveyor might do or say. When advising on the merits, a solicitor would rely on the expert evidence which he had obtained from a quantity surveyor. The solicitor then had to take into account his own views on the likelihood of that evidence being accepted from a forensic perspective. On the other hand, the quantity surveyor would be focussed on the valuation aspect of the case. As regards the valuation disputes, he would have a greater understanding of the underlying valuation issues than would a solicitor yet he might be less well placed to provide an independent view on the likelihood of that evidence being accepted from a forensic perspective. It all depended on what he was asked to do.
(4) In all the circumstances, expert evidence was necessary. This was a case of professional negligence where evidence from someone in the same professional field was required. In any event, there were issues in respect of which the evidence would be of assistance and it was reasonable to require expert evidence to be given in the context of the proceedings as a whole. Nonetheless, that evidence should be confined to that which was strictly required and subject to close control, bearing in mind the court’s significant experience of dispute resolution in the construction sphere and in respect of which it would not require any assistance.
Jonathan McNae (instructed by Colman Coyle LLP) appeared for the claimants; Lynne McCafferty (instructed by Beale & Company Solicitors LLP) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read transcript: Wattret v Sands
