I recently wrote about an expert’s role in construction disputes and, in particular, the role they play in adjudication. As I said then, there are no rules about using experts in adjudication, or protocols that cover how they should behave. An individual may be bound by guidance provided by his professional body (such as the RICS’ practice note on surveyors acting as expert witnesses), but that is as far as it goes.
Aside from issues relating to independence, impartiality and cost, some practitioners may think that parties involve experts too often, especially in a form of dispute resolution like adjudication, which is supposed to be about cash flow and speed.
That may be true to a limited extent, but there comes a point when expert evidence is necessary. For example, if a party alleges professional negligence or a breach of a party’s reasonable skill and care obligation. If that happens, how is the allegation made out without the evidence of an expert to guide the adjudicator?
Experts in professional negligence claims
I had always thought that, save for an obvious case, you needed to support a claim of professional negligence with expert evidence, at least in court proceedings (or arbitration). On this point, Akenhead J gave some useful guidance earlier this year in ACD (Landscape Architects) Ltd v Overall, where he was looking at the issue of expert evidence and pleading allegations of professional negligence relating to an architect’s appointment.
What I thought was most interesting was that he said that when you are looking at the claimant’s case, advanced in the statement of claim, expert evidence may usually be required, but it should not be regarded as essential in all cases. I assume this means that the claimant will still need an expert down the line and if one isn’t appointed, he’ll most likely find the case is struck out. However, that doesn’t stop the claimant getting the claim off the ground.
In ACD v Overall, Akenhead J referred back to Pantelli Associates v Corporate City Developments, where Coulson J struck out a professional negligence claim against a quantity surveyor because the claimant had failed to provide expert evidence, even thought the alleged negligence had occurred more than three years previously. Coulson J commented that:
“…there is no expert evidence of any kind to suggest that that work was carried out inadequately, or was in some way below the standard to be expected of an ordinarily competent quantity surveyor. Not only is it simply not good enough to turn a positive contractual obligation into an allegation of professional negligence by adding the words “failing to” to the obligation, but it is also wholly inappropriate to do so in circumstances where there is no expert input to allow CCD to make such an allegation in the first place.”
He went on to add that:
“…it is wrong in law and practice to make such unsupported allegations in this way, and I regret that they were ever made.”
Professional negligence claims in adjudication
Despite the judgments in Pantelli and ACD v Overall, there has been no positive guidance as to how far the rule that you need to support a claim of professional negligence with expert evidence should extend in adjudication or, perhaps, when that expert evidence should be introduced into the proceedings. That said, I would expect expert evidence to be provided with the referral and/or the response, as appropriate.
While there are no hard and fast rules in adjudication, it is a judicial process. Therefore, the principles from the courts should be applied in adjudication too. Unless it is obvious that there has been a breach of the reasonable care and skill obligation, then expert evidence is needed to try and persuade the adjudicator that a professional has (or has not) been negligent. An example of something very obvious may be a design that does not comply with Building Regulations.
From the judgments in Pantelli and ACD v Overall, it is difficult to discern what breaches the quantity surveyors and architects were accused of. As an adjudicator, how am I supposed to decide whether a professional was negligent if the referring party cannot support its case with expert evidence?