England’s High Court allows expert evidence in professional negligence claim against quantity surveyors

In Wattret v Thomas Sands Consulting Ltd [2015] EWHC 3455(TCC), England’s Technology and Construction Court granted the Defendant’s application for an order that the parties be permitted to call expert evidence from a quantity surveyor with expertise in dispute resolution.

Claim against firm of Quantity Surveyors

The Claimant homeowners claimed damages for professional negligence against the Defendant firm of quantity surveyors, who they had engaged to act for them before and in arbitration proceedings against building contractors in a dispute arising out of a building project at their property. The arbitration resulted in an award in favour of the building contractors. The Claimants now claimed that the quantity surveyors had failed to:

• appreciate potential problems with the claim;
• advise that the risks outweighed the benefits;
• put forward offers of settlement;
• advise on costs of the arbitration;
• advise the Claimants to obtain after the event (ATE) insurance;
• take legal advice.

The Claimants also alleged that the quantity surveyors had given them over-optimistic views of the strength of the Claimants’ position in the arbitration and had instructed a quantity surveyor within the Defendant’s own company to act as the expert.

Claimant’s argument against expert evidence

The Claimants argued that the court should be able to determine the case without expert evidence, as in professional negligence claims against solicitors. They argued that there ought to be no difference in principle between the standards of a solicitor on the one hand and those of a quantity surveyor experienced in dispute resolution services on the other.

Court allows expert evidence

The Court disagreed and made an order allowing the parties to adduce expert evidence, holding as follows:-

• This was not a solicitor’s negligence claim. It was a claim against quantity surveyors and it would be necessary to judge the Defendant solely by the standard of a reasonably competent quantity surveyor providing dispute resolution services.
• There may be differences between what a solicitor and quantity surveyor would do or say in a given situation. For example, the Claimants complained that the Defendants should have alerted them to the existence of ATE insurance or other funding options. It may be that a reasonably competent quantity surveyor engaged in dispute resolution would be less well versed in that type of funding than a solicitor.

Although the court allowed expert evidence, it restricted it to that which was strictly required and on that basis required the Defendant to provide a list of issues by reference to the pleadings and to identify the specific points on which it intended to provide expert evidence and what the relevant questions for the expert should be.

The Court ruled that this was not an appropriate case for a single joint expert, since the case was one of significant value (£1.2 million) and was one in which the parties should have the opportunity to call their own evidence.

Comment

We report this case since we come across claims consultants representing a party in arbitration from time to time. The judge held that the standard of care for lawyers and quantity surveyors in dispute resolution are different. It appears that the standard expected from claims consultants can be lower even though they hold themselves out to be experienced in dispute resolution. Many claims consultants are also legally qualified. It is not clear whether the standard expected will be higher in such case.

Key Contacts

Kwok Kit (KK) Cheung

Partner | Litigation and Dispute Resolution

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