Not a law unto themselves

Permission for solicitors to act as expert witnesses was always granted grudgingly, but these days it hardly happens at all.

A damages claim against a lawyer for negligent legal advice will frequently revolve around what procedures were or should have been adopted. Whether the procedures relate to the application of rules of court, to those customarily used in a property transaction or to something else legal, they are not necessarily or even normally the primary concern of the court.

Legal submissions by the plaintiff's or defendant's advocates will normally provide sufficient guidance as to the arguments available on such matters. The court will wish to concentrate on whether the alleged failure to follow customary patterns of procedure has broken a legal duty owed to the plaintiff and whether that has directly or indirectly occasioned the loss claimed.

The use of an expert is not necessarily of assistance in deciding these issues. The central point is one of cause (whether a legal duty was broken) and effect (did that occasion the loss claimed). In the case of a claim against a solicitor or barrister, the issue of what does or does not fall within the ambit of their duty to take care is clearly a matter of law. As such, it falls to be determined by the court rather than upon the opinion evidence given by a practitioner.

Although this line of reasoning may seem hard, especially as there are some solicitors that have much greater experience than most judges of the intricate problems created by complex transactions, it does underline the tough attitude now being taken by the courts towards those who give legal advice. Professionals are to be judged not just by the standards of their profession or the customs of their peers, but by the objective standard of the law.

Solicitors in particular ought not to expect that expert evidence will necessarily be available to support their actions in the event that they are sued. Indeed, evidence from practising solicitors on the scope of the duty of care is now likely to be ruled inadmissible. In the words of Evans LJ in United Bank of Kuwait v Prudential Property Services (1995) (unreported), where “the court has sufficient personal experience of its own…” to be able to decide an issue, it will do so without the aid of experts.

The recent spate of claims in property transactions, partly prompted by the falls in values since the end of the 1980s and partly by the rise in the number of mortgage defaulters, has led to an intensive examination of the detail of conveyancing procedures. In addition, the courts have been confronted with the uncovering of many mortgage frauds, some of which might have passed unnoticed had property values continued to rise. It might have been assumed that this would lead to a great deal of activity for expert witnesses, but the courts seem to be resisting this kind of pressure.

Lord Woolf's report will undoubtedly give further impetus to these restrictions on expert evidence. At Section III, ch.13, para.11 he states: “The basic premise of my new approach is that the expert's function is to assist the court. There should be no expert evidence at all unless it will help the court, and no more than one expert in any one speciality unless this is necessary for some real purpose.”

Woolf has also indicated his preference for court-appointed experts, although, in view of the opposition he has encountered following the publication of his interim report he admits that “it would not be realistic to expect a significant shift towards single experts in the short term”. Nevertheless, it seems likely that the courts will now look very carefully at the need for expert evidence. Woolf also says: “In some cases there are good reasons for each side to appoint its own expert or experts.” Nevertheless it seems likely that courts will now look carefully at the need for expert evidence. Woolf adds: “Parties should not assume that they will be entitled to advance expert evidence at trial simply because they have instructed an expert at some pre-trial stage.”

Litigation solicitors will now need to consider even more carefully the necessity of appointing an expert at all, particularly when their instructions will be to consider issues of professional practice in claims against lawyers. Only if there are technical aspects, and many of these will relate more to the nature of the subject matter of the transaction than to its form, will the provision of expert evidence become relevant.

Even so, it is unlikely in the current climate that expert evidence will be admissible in cases of negligent legal advice.