In the third blog in the “How To” series, Jamie Apted looked at some of the situations where a solicitor may have been negligent and in my last blog, I considered the amount of damages that may be recoverable in a negligence action. However, before you can start calculating the amount of damages, you will need to determine whether the professional in question was negligent. It is not enough to say that your case falls within one of the scenarios set out in Jamie’s blog. You will need to go a step further and obtain an Expert Report confirming that the professional was indeed negligent in your case. The fourth blog in the “How To” series will focus on the requirement to obtain an Expert Report.
Yes. You cannot raise a Court action without a supportive Expert Report.
If you raise a Court action then the Court and the professional you are suing will want to see a supportive Expert Report saying that the professional was indeed negligent. Usually the professional in question will look to get their own Expert Report saying they were not negligent if they dispute your claim. So there is no getting around the need to obtain a supportive Expert Report.
The reasoning behind obtaining an Expert Report is that the Hunter v Hanley test for negligence is very high and only someone considered to be an Expert in the specific field the professional accused of negligence practiced in would be able to conclude whether or not the professional was negligent. For example, in a conveyancing case you would need a solicitor who has years of experience in conveyancing practice to advise whether or not the solicitor in question was negligent during the conveyancing transaction he carried out for you. Same would apply for any other field of law or professional practice area.
A crucial thing to remember is that just because the professional did something that perhaps another professional in the same field would not have done does not mean the professional was necessarily negligent. For example, you may tell your new lawyer that you previous lawyer dismissed an argument you were looking to put forward in a court action. Even if your new lawyer thinks that he would have acted differently that in itself does not mean your previous lawyer was negligent. Instead, you would need to get an Expert Report confirming that in all the circumstances what the old lawyer did amounted to negligence.
As already mentioned, the Expert would have to have years of practice and experience in the field the professional you are accusing of negligence practices in. It is the Expert’s experience in that field that will make him or her an Expert.
It always helps if the Expert has previous Expert Witness experience at preparing Expert reports and appearing in Court as an Expert Witness. The Expert would have to speak to his or her report in Court and it always helps if the Expert has done that before and is considered to have the “ear of the Court”.
It is also important to make sure that the Expert was practicing at the time the negligent act took place. For example, if the expert retired after 30 years in practice in 2010 but the act complained of took place in 2014 then he would not be qualified to comment on the practice in 2014. Despite being retired from active practice, he would, however, be able to act as an Expert in cases where the events complained of took place while he was still practicing, that is before his retirement.