ACD (Landscape Architects) Ltd v Overall & Anor

Professional-negligence allegations generally require supporting expert evidence where breach or causation depends on professional standards. That requirement is procedural and evidential, not an immutable bar to pleading negligence before expert evidence is obtained. The court must consider timing, explanation, proportionality and the overriding objective. Strike-out may be appropriate where expert evidence is essential and the party makes clear it will not obtain it. A contractual claim based on an express obligation may remain viable without expert evidence where breach can be proved as fact. Recoverable loss is confined by the scope and purpose of the professional retainer.

The claimant, a landscape-architecture firm, sued for unpaid fees arising from planning work concerning two proposed access arrangements for a modest dwelling. The defendants pleaded contractual and professional-negligence allegations, including failure to provide formal landscape and visual impact assessments, and counterclaimed for losses said to result from unsuccessful planning appeals and later expanded development.

The claimant applied to strike out the allegations, relying on Pantelli Associates Ltd v Corporate City Developments No 2 Ltd [2010] EWHC 3189 (TCC), because expert evidence had initially been absent. The court considered the proper approach to unsupported professional-negligence pleadings, the scope of the retainer and the proposed claim for enhanced future development value.

1. The strike-out application would not have succeeded in full. The pleaded claim included an alleged express contractual term requiring formal landscape and visual impact assessments. If proved, failure to provide those reports would be a question of contractual breach and would not necessarily require expert evidence. Similar reasoning applied to the pleaded total failure of consideration.

2. The negligence allegations were materially different. Expert evidence would be required to establish that reasonable care and skill demanded a full assessment, and to show that a suitable report would have improved the prospects of success on the planning appeals.

3. Pantelli Associates Ltd v Corporate City Developments No 2 Ltd [2010] EWHC 3189 (TCC) did not establish an inflexible rule preventing professional negligence from being pleaded before supporting expert evidence was obtained. The court should consider the stage of proceedings, the reasons for the absence of evidence, proportionality and the overriding objective. A reasonable opportunity to obtain evidence may be preferable to strike-out. Strike-out remains available where expert evidence is essential and the party makes clear that it will not obtain it.

4. The scope of recoverable loss depended on the professional retainer. The retainer concerned two applications for a modest dwelling. Loss reflecting the failure of those applications, including any provable reduction in site value, was potentially within scope. A claim exceeding £5 million based on later applications for a larger house or several houses was outside the scope of the retainer and was not realistically arguable.

5. The costs of and occasioned by the strike-out application were ordered to be the claimant’s costs in the case, subject to specified substantive witness-statement costs remaining costs in the case generally.