Expert Evidence in Professional Negligence Claims
To prove professional negligence a claimant has to be able to show that the professional’s work or advice fell below the standard of a reasonably competent member of their profession.
As the work of many professionals is complex and specialised, a court will often require parties to present the evidence of an expert in that field who may give their opinion on whether a particular standard was met or provide valuation evidence for example. Depending on the nature and value of the claim, both parties may each instruct their own expert, or they may share a ‘single joint expert’ in order to help keep costs at a proportionate level.
Experts are not usually required to provide evidence on whether there was a breach of duty in claims against lawyers. This is because the standard of a reasonably competent lawyer is a question of law for the court.
How is expert evidence used?
Generally an expert will produce their evidence to the court in the form of a written statement. They may also be required to give oral evidence at a trial.
If both parties have instructed separate experts, they will often exchange their reports simultaneously. The parties may then ask questions of the experts in writing. Usually the experts then meet or discuss the issues and prepare a joint statement setting out the areas where they agree and where they disagree. This is often an effective way to narrow the points in dispute, saving time and money.
An expert’s duty is to assist the court. This duty overrides any obligation to the person from whom they have received instructions, or by whom they are paid. Their evidence should be independent, unbiased, and experts should not assume the role of an advocate.
If experts or those instructing them don’t abide by these rules, the court may:
- Refuse to allow the expert’s evidence to be used;
- Order that some or all of the fees of the expert cannot be recovered from the other side, even if the party is successful; and/or
- Order fines or imprisonment on a criminal basis for misleading the court/perjury.