Wattret & Anor v Thomas Sands Consulting Ltd

Expert evidence in professional-negligence proceedings is not automatically required. The court must consider the pleaded issues and ask whether expert evidence is necessary, whether it would assist in resolving an issue, and whether it is reasonably required to resolve the proceedings as a whole. Evidence from a member of the defendant’s profession will ordinarily be required unless the case is obvious or falls within an exception concerning questions of law rather than professional practice. Where expert evidence is permitted, it must be closely confined to the issues for which it is genuinely required.

The claimants sought damages in contract and tort from a firm of chartered quantity surveyors arising from professional services provided before and during an arbitration concerning building works. Liability, causation and quantum were disputed. The claimants alleged, among other matters, that the defendant had failed to exercise the skill and care expected of competent quantity surveyors and had acted to a standard applicable to legal professionals.

At a case management conference, the defendant applied to adduce expert evidence from a quantity surveyor experienced in dispute resolution. The claimants opposed the application and, alternatively, sought a single joint expert. The central questions were whether expert evidence was necessary or reasonably required, and how its scope should be controlled.

1. Application granted. Expert evidence was permitted, subject to close procedural control.
2. Under CPR 35.1, expert evidence must be restricted to evidence reasonably required to resolve the proceedings. The court adopted a three-stage inquiry: whether evidence is necessary to resolve each pleaded issue; if not, whether it would assist the court; and, if it would assist, whether it is reasonably required in the context of the proceedings as a whole.
3. In a professional-negligence claim, evidence from a person in the same professional field will ordinarily be required to establish the applicable standard and breach. The rule is not absolute. Expert evidence may be unnecessary where the answer is obvious, such as a plainly defective design.
4. The exception illustrated by Bown v Gould & Swayne did not apply. The claim was against quantity surveyors, not solicitors. Although the claimants alleged that the defendant held itself out as equivalent to legal professionals, that allegation was alternative and might fail. The defendant therefore had to be judged, at least potentially, by the standard of a reasonably competent quantity surveyor providing dispute-resolution services.
5. Questions concerning the practice of quantity surveyors, including advice on ATE insurance, obtaining legal advice and the valuation or forensic aspects of merits advice, might require expert assistance. The court could itself address the standard applicable to lawyers in construction disputes.
6. The evidence had to be confined to specific pleaded issues on which the standard or duty was said to differ from that applicable to a construction lawyer. The defendant was required to provide a list of issues and questions for the expert, with the claimants given an opportunity to respond. A single joint expert was inappropriate because of the claim’s significant value and the possibility that expert evidence on an issue could be determinative.