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Solicitor Negligence Claims and Expert Evidence

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A recent judgment in a claim for solicitor’s professional negligence has highlighted the importance of appropriate expert evidence to establish whether and how any such negligence can be attributed.

The claim in question alleged negligence by well-respected law firm Leigh Day in how it represented its client (a family) at an inquest. The claim was dismissed by Mrs Justice Andrews, the salient points in the judgement appearing in paragraphs 8 & 9, where the judge says:

It is not enough to show that a different solicitor may have taken a different view or a different course, let alone that the client felt that the solicitor could have done more. That is why the court will rarely hold a professional to be in breach of duty in the absence of assistance from a suitably qualified expert who can explain why in his or her opinion the acts or omissions complained of fell below the standard of professional competence that would have been expected in those circumstances. No expert evidence was called in this case.
Of course, not every case of professional negligence requires expert evidence to support it, and there may be cases where the breach of duty is obvious, for example where it is possible to demonstrate, by reference to established authority, that the wrong legal advice was given, or where the solicitor fails to issue proceedings within the limitation period that would otherwise have had a realistic prospect of success. However, this is not such a case."

Use of expert evidence is pretty much a pre-requisite in negligence claims involving almost any other profession, from architects and builders though to accounts and financial advisors. For claims against solicitors and lawyers however, specific principles are generally applied, as summarised in Jackson & Powell. Simply put, courts and judges do not want experts to tell them what the law is, or to describe what they would have done if they had been bringing the original action. A good example of this can be found in Bown v Gould & Swayne [1996], where Millett LJ made the following robust comments about the expert evidence provided in a professional negligence claim against a conveyancer:

If it is necessary to assist the judge to understand the proper machinery for the deduction and investigation of title, the proper way to do it is to cite the textbooks such as Emmett, Farrand, Williams and Dart, if necessary supplemented by Law Society opinions. In fact, this is a straightforward case in which I doubt that even such references would be necessary. I deplore the suggestion that it is either helpful or necessary to call evidence from high street solicitors whose individual practices may be eccentric and differ and whose practice certainly does not make the law of the land."


So, the use of expert evidence in actions against solicitors and lawyers is a complex area. Whilst simply obtaining evidence of what a different lawyer would have done is relatively simple, it would not be admissible in court, whilst evidence of what may constitute ‘standard legal practice’ may be viable for some claim types (eg: conveyancing) but not for others.

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