BuildLaw - Issue 13 Expert Evidence In Professional Negligence Claims 1 Expert Evidence In Professional Negligence Claims A recent High Court decision has provided practical guidance on the use of expert evidence in professional negligence claims. Expert Evidence: Expert Evidence in Professional Negligence Claims and Waiver of Privilege in Draft Expert Report Two recent High Court decisions in relation to the same case have provided practical guidance on whether privilege is waived in an expert s report when significant parts of the report are deployed in a witness statement prepared for a strike out application and the use of expert evidence in professional negligence claims. Waiver of privilege in draft expert report. In ACD (Landscape Architects) Ltd v Overall & Anor [2011] EWHC 3362 (TCC) (15 December 2011) the defendant landowners (Overall) were faced with an application by the Claimant landscape architect (ACD) to strike out Overall s counterclaim in respect of ACD s alleged professional negligence. That application was in part based on Overall s failure to procure an expert report that supported its counterclaim in professional negligence against ACD. As Mr Justice Coulson said in Pantelli Associates Ltd v Corporate City Developments Number Two Ltd [2010] EWHC 3189 (TCC):...it is standard practice that, where an allegation of professional negligence is to be pleaded, that allegation must be supported (in writing) by a relevant professional with the necessary expertise. ACD s strike out application was made on 13 October 2011 and due to be heard on 9 December 2011. From 2 December 2011 to 6 December 2011 Overall filed lengthy witness statements and an application to amend its defence and counterclaim. One of those witness statements referred to (and appeared to set out extracts from) a draft expert report procured by Overall. Overall sought not to waive privilege in that draft report but suggested that its professional negligence claim should not be struck out due to the content of that draft report.
BuildLaw - Issue 13 Expert Evidence In Professional Negligence Claims 2 The witness statement from the defendant s solicitor stated that: 23 the Defendants are in a position to call expert evidence from a landscape architect supporting their case in any event. I am in possession of a draft report from a chartered architect, Mr David Clarke, which is a privileged document and in which I am not authorised to waive privilege. Nor would I advise my clients that privilege should be waived so as to afford the Claimant the advantage of unilateral disclosure of an as yet incomplete and draft report even were I authorised to waive such privilege if I thought it a good idea to do so. 24. I can, however, confirm, without waiving privilege in any part of the document which I have seen, that I have considered written material from a competent chartered landscape architect prepared to act as an expert witness in this case if required to do so; that I have obtained counsel s views in relation to such material; and that the view of both counsel and myself is that, if accepted by the Court, the effect of this material if adduced at trial in a Part 35 compliant report will be to underpin the following salient points The statement then, according to Mr Justice Akenhead, went on to: set out over 5½ pages 18 separate points which on any sensible analysis can only have been culled from the report of Mr Clarke. Many of the points involve an identification of what a competent Landscape Architect should have done. The claimant applied for disclosure of the draft report on the basis that any privilege had been waived. Part 31.14(1) of the Civil Procedural Rules (CPR) lays down that a party may inspect a document mentioned in (b) a witness statement. Of course, it is open to the other party to show a good reason why the document in question should not be disclosed. Those reasons could include privilege. The notes to the CPR provide some guidance: Mere reference to a privileged document in a statement of case may not of itself lead to an implied waiver of the privilege, but reference to the extent of reliance on the privileged document is likely to do so [31.14.5] As with the statements of case, mere reference to a privileged document in a witness statement may not of itself lead to the implied waiver of the privilege, but waiver will occur where a party is "deploying" the material in court. See Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529 [31.14.6] Referring to previous authorities, the Judge drew the following propositions: (a) Unless there is a good reason otherwise, documents referred to in a witness statement submitted to be used in interlocutory or final court hearings must be disclosed by the party submitting the statement. (b) One good reason is that the documents are privileged. (c) Privilege will be waived where the otherwise privileged document is actually or effectively referred to in a witness statement and or part of its contents are deployed for use actually or
BuildLaw - Issue 13 Expert Evidence In Professional Negligence Claims 3 potentially in the interlocutory proceedings or in the final trial, as the case may be. (d) A party which deploys part of the privileged document in a witness statement will, at least as a matter of general principle, be required to disclose the whole of the document because it is not just to allow a party by way of cherry picking to rely only on that part. (e) The test of whether a document or part of it is being deployed is whether the contents of the document are being relied upon rather than the effect or impact of the document. (f) Once having referred to the document or part of it in a witness statement, generally at least the Court will presume that it is relevant, because the very fact that it is referred to in the statement demonstrates its relevance. Mr Justice Akenhead concluded that privilege was waived by Overall in relation to the entire draft report of its expert and ordered its disclosure under the principle of collateral waiver or the no cherry picking rule. His reasons included: (a) At least on a "belt and braces" basis in case they are wrong or ultimately are prejudiced at the trial by not having an expert, Overall retained a specialist Landscape Architect expert. (b) The expert had been retained to bolster the defence to the strike out application (c) Significant parts, at least, of the draft report had been deployed by Mr Hitchen in his witness statement that on any analysis was a précis of the report or substantial parts of it. (d) Overall was clearly relying on the contents of the draft report, the detail of which had been deployed to demonstrate the strength of the support to the Defendants case on the application. (e) There was no suggestion that only part of the draft report should be disclosed, if privilege has been waived. The fact that Overall sought expressly to maintain privilege in the draft report was immaterial as it had in fact deployed the contents of the report The use of expert evidence in professional negligence claims In Pantelli Associates Ltd v Corporate City Developments Number Two Ltd [2010] EWHC 3189 (TCC) a professional negligence claim against a quantity surveyor was struck out due to the claimant's failure to produce any expert evidence, despite three years having passed since the alleged negligent act. That case appeared to confirm the general rule that where an allegation of professional negligence is raised, the allegation has to be supported in writing by a relevant professional with the necessary expertise (albeit, in Pantelli, the points arose in an interlocutory hearing rather than at trial).
BuildLaw - Issue 13 Expert Evidence In Professional Negligence Claims 4 In ACD (Landscape Architects) Ltd v Overall and Anor [2012] EWHC 100 (TCC), the defendant landowners, Overall, had raised allegations of professional negligence in their defence and counterclaim to a fee claim by the landscape architects, ACD. ACD applied to have the defence and counterclaim struck out on the grounds that no expert evidence had been adduced. Shortly before the application was heard, Overall provided draft expert evidence and ACD withdrew the strike-out application, leaving costs as the only issue to be determined by the Court. Decision The Court found that the defendant landowners would have needed to adduce expert evidence to prove their case in negligence. Because the defendants had made it clear that they did not believe that they needed expert evidence and were not intending to secure such evidence, it was legitimate for the claimant to bring this to the attention of the Court. Yet, the claimant's strike-out application would not have succeeded in full had it proceeded, as the defendants' counterclaim also contained a claim for breach of contract, which could not be pursued without expert evidence. The Court also found that, in this case at least, a strike-out application was not the most costeffective way of dealing with a failure to adduce expert evidence. The claimant could (the inference being they "should") have raised the issue at a case management conference, and the Court would most likely then have given the other party a "reasonable opportunity" to obtain that expert evidence. The Court's finding on costs reflected this: the costs of the strike-out application were the claimant's costs in the case, meaning that the claimant would not have to pay the defendants' costs, but would only recover its own costs if it won the case overall. Importantly, the Court also provided guidance on the use of expert evidence. Akenhead J commented that "there are obviously some cases of professional negligence in which expert evidence is not required". A statement of truth signed by a party may suffice to support a pleading of professional negligence in cases where it would be (a) disproportionate to obtain expert evidence at a very early stage of proceedings as the amount in issue is small, or (b) there is a sensible prospect of settlement. However, there are also situations where it is right for a defendant to draw the Court's attention to a lack of expert evidence, for example where the party pleading professional negligence has (a) made it clear that it does not need expert evidence, (b) gives a clear impression that it has no intention of securing expert evidence, or (c) pursues the claim in litigation for a long time without securing
BuildLaw - Issue 13 Expert Evidence In Professional Negligence Claims 5 expert evidence. Comment It remains the case that most professional negligence claims will require expert evidence, but the Court has confirmed that it is "not an immutable rule" that professional negligence cannot be pleaded "unless and until the claimant had secured supporting expert evidence". This decision does, however, potentially widen the scope for claimants in professional negligence claims to refrain from adducing expert evidence in support of their case at an early stage, which could make it more difficult for defendants to take early steps to clarify and assess the case against them. However, this decision appears to suggest that claimants can only safely do so in cases where the amount in issue is small or there is a sensible prospect of settlement. Defendants and their insurers now have the comfort of the Court's guidance as to (a) the circumstances when they can reasonably raise an issue with a claimant's failure to provide expert evidence during the course of proceedings (as opposed to at trial) and (b) the appropriate procedural method of drawing this issue to the Court's attention. An application for strike-out may no longer be considered the most cost-effective approach, at least, not in the first instance although, as was shown in Pantelli, it remains a weapon in the professional's armoury. Further reading: copies of all the following cases are available on the Building Disputes Tribunal Website: http:///resources/court+decisions.html ACD (Landscape Architects) Ltd v Overall & Anor [2011] EWHC 3362 (TCC) (15 December 2011) ACD (Landscape Architects) Ltd v Overall and Another [2012] EWHC 100 (TCC) Pantelli Associates Ltd v Corporate CIty Developments Number Two Ltd [2010] EWHC 3189 (TCC)
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