EXPERT SOLICITORS? Daniel Crowley considers whether expert evidence from a solicitor is admissible in

Transcription

1 EXPERT SOLICITORS? Daniel Crowley considers whether expert evidence from a solicitor is admissible in solicitors negligence cases. Is evidence from an expert solicitor admissible as evidence in a solicitor s negligence action? The Court of Appeal has said (apart from very limited circumstances 1 ) no, but a series of first instance decisions considering solicitors and barristers undermines the broad application of the principle enunciated by the Court of Appeal. The principle In Bown v. Gould & Swayne 2 the Court of Appeal refused the Claimant permission to adduce expert evidence in a solicitor s negligence action concerning an alleged negligent conveyance of property. Simon Brown LJ after citing a well known passage from Oliver J in Midland Bank Trust Co Ltd v. Hett, Stubbs & Kemp 3 stated that the evidence sought to be adduced would amount to no more than an expression of opinion by the expert, either as to what he himself would have done, which could not assist, or as to what he thinks should have been done which would have been the very issue for the judge to determine 4. 1 Evidence is admissible on the practice in the solicitors profession: some accepted standard of conduct which is laid down by a professional institute or sanctioned by common usage. See Bown v. Gould & Swayne [1996] PNLR [1996] PNLR [1979] Ch [1996] PNLR 130 at 135. Simon Brown LJ also said what solicitors should do in the very particular and highly individualistic circumstances of that case was not a matter of practice.

2 2 Even though this decision has subsequently been approved by the Court of Appeal 5 a series of first instance decisions have cast doubt on the broad applicability of that decision to all solicitor s negligence cases. The exceptions - Solicitors Expert evidence from a solicitor in a solicitor s negligence case has been allowed: (i) in a case based on advice on a mortgage. In Archer v. Hickmotts 6 HHJ Brunning said I do not read the judgment of Oliver J as indicating that, in cases involving solicitors, expert evidence is of itself always inadmissible. It must depend upon the circumstances and context in which the evidence is given and the context of the issues to which it is directed. (ii) in the conveyancing field where there was no guidance from textbooks or the Law Society: May v. Woollcombe Beer & Watts. 7 (iii) in The Guild (Claims) Limited v. Eversheds 8 a solicitor s negligence action concerning company law, where Jacob J said In passing I note that there is no expert evidence from a solicitor experienced in this field of practice that it is the duty of a solicitor to go over a banking report and tell the recipient what is commercially significant about it. I was told that no solicitor expert evidence was provided because it was thought that the court would have the necessary expertise. Quite why, I do not know. Judges are unlikely to have 5 Woodford & Ackroyd (A Firm) v. Burgess [1999] Lloyd s Rep PN 231. It is also consistent with an earlier decision of the Court of Appeal Carradine Properties Ltd v. D J Freeman & Company (A Firm) (1989) 5 Const. L.J [1997] PNLR 318 at [1999] PNLR 283 see also G&K Ladenbau (UK) Limited v. Crawley & de Reya [1978] 1 All ER 682 (Mocatta J) 8 [2000] Lloyd s Rep PN 910 at 917 col.1

3 3 had much experience of this sort of thing. Whilst they are equipped to decide points of law, practice in a field of expertise is something quite different. The exceptions Barristers (i) In Mathew v. Maughold Life Assurance Co Ltd 9, a negligence action against a barrister, each side called expert evidence from QCs practising at the Revenue Bar. (ii) In Matrix Securities Ltd v. Theodore Goddard 10 a senior specialist tax QC was permitted to call evidence from another senior specialist tax QC. His evidence was tendered as that of at least one other reasonably competent member of the relevant small professional group, and more widely as indicating, at least in certain respects, the practice of the Revenue Bar more generally. 11 (iii) In Estill v. Cowling Swift & Kitchin and Anor 12, Arden J, mindful of the limits on the extent to which expert evidence, whether of solicitors or counsel, can assist the Court placed limits on the expert evidence that could be adduced. She allowed evidence from an expert solicitor and two tax QCs. 13 (iv) In Liverpool Roman Catholic Archdiocesan Trustees Inc v. Goldberg 14, an action for negligence against a tax QC, both sides were permitted to call expert 9 (1987) 3 PN 98 at [1998] PNLR 290 (Lloyd J) 11 Ibid at [2000] Lloyd s Rep PN Ibid at 389 col The Times 9 th March In Australia, Courts have approved the relevance and admissibility of expert evidence from barristers in barrister s negligence cases. See Yates Property Corporation v. John Boland (2000) 74 ALJR 209 and Heydon v. NRMA Ltd New South Wales Court of Appeal

4 4 evidence from a tax barrister. The tax barrister chosen as expert for the Defendant was attacked as lacking independence (he was a friend and from the same chambers as the Defendant). His evidence was also criticised as being merely what he would have done in the circumstances. The judge said that this was a matter for the trial judge. CPR The starting point for any application to adduce expert evidence in a solicitor s (or a barrister s) negligence case is CPR 35.1: Expert evidence should be restricted to that which is reasonably required to resolve the proceedings. Practice Practitioners should heed the words of HHJ Brunning in Archer v. Hickmotts cited above and carefully consider the issues on which the expert evidence is sought to be adduced. Are they matters likely to be within the judge s knowledge or covered in the authorities or standard textbooks? Or are they matters, for example, of non-contentious practice, which are unlikely to be within the judge s knowledge? Thought should also be given to whether the expert evidence sought to be adduced is as to standard practice in the field or is evidence of what the particular expert would have done in the circumstances. In Bown Millett LJ deplored the suggestion that it is either helpful or necessary to call evidence from high street solicitors whose individual practice may be eccentric and differ and whose practice certainly does not make the law of the land [1996] PNLR 130 at 137

5 5 Conclusion The series of first instance decisions considering each case on its merits in light of the issues and the other evidence available to the court indicates the best way of ensuring that the court has the best evidence before it to resolve the dispute and so do justice between the parties. Assessing each application to adduce expert evidence on a case by case basis rather than applying a blanket ban will overcome the difficulty identified by Brooke LJ in Belamoan v. Holden & Co: 16 A further difficulty that confronts us on this appeal is that in the trial of a claim against a firm of solicitors for damages for professional negligence there is a tradition in this country that the courts do not need expert evidence because judges will be familiar with the standard of care which is reasonably required of lawyers and do not need evidence to help them (see Midland Bank Trust Company Ltd v. Hett Stubbs & Co Kemp [1979] Ch 384, 402B-D, approved and applied by this court in Bown v. Gould and Swayne [1996] PNLR 130). As the practice of the law becomes more and more specialised, the existence of this tradition may give rise on occasion to difficulties. Daniel Crowley specialises in commercial, insurance and professional negligence cases. Copyright 2001 Daniel Crowley. All rights reserved. 16 Court of Appeal (unreported)