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The importance of expert evidence in professional negligence claims

The recent case of Avondale Exhibitions Limited -v- Arthur J. Gallagher Insurance Brokers Limited [2018] EWHC 1311 (QB) has provided a salutary reminder of the fundamental importance of adducing expert evidence in almost all professional negligence cases.  Without it, the chances of convincing a court to find that a professional has breached their duty of care are significantly reduced. 

This case touched on many of the common themes which arise in professional negligence cases, however of most interest were the court's comments on the importance of expert evidence in cases where a party is asking the court to find that a professional has fallen below the standard of skill and care required.

Avondale brought a claim against its insurance broker (who, for most of the relevant period, was known as Giles Insurance Brokers Limited ("Giles")) for failing to disclose criminal convictions of one of the individuals who ran and owned Avondale to Avondale's insurers, QBE Insurance ("QBE").  QBE had avoided a number of policies Avondale had taken out on the basis that these convictions had not been disclosed to it.  It was not in dispute between Avondale and Giles that QBE was entitled to do so on the basis of material non-disclosure. 

Avondale's primary case against Giles was that it had disclosed these convictions to Giles, who then failed to pass this information on to QBE in breach of duty.  However, Avondale also ran the argument that Giles was in breach of duty regardless on the basis that it had not gone far enough to bring the importance of disclosure of such matters to the attention of Avondale or to elicit the relevant information from it.

HHJ Keyser QC found that, as a matter of fact, Avondale had not informed Giles of the convictions.  Avondale's case on the second limb also failed.  It seems that one of the key factors taken into account by the court was the lack of expert evidence adduced on behalf of Avondale to try to demonstrate that Giles had fallen below the standard of skill and care to be expected of an insurance broker.  On this point, the Judge commented that:

  • "It is usual for a court to require expert evidence as to the standards ordinarily observed within a profession before it will find that a professional's conduct amounts to negligence" (para 119);
  • "..it is striking and significant that Avondale asks the court to find that Giles fell below the standard of reasonably careful and competent insurance brokers without adducing any expert evidence as to the standards in that profession" (para 121);
  • "The lack of expert evidence significantly limits, though it does not altogether exclude, the possibility of a finding that Giles' conduct was such as to constitute a breach of the common-law duty of care or the contractual obligation to exercise reasonable skill and care" (para 121).

On the facts, and unsurprisingly in view of his comments above, the Judge found that Giles was not in breach of duty.

Good quality expert evidence is a key ingredient to the success of almost all professional negligence claims and it is clear from the Judge's comments that the lack of expert evidence as to whether Giles had breached its duty of care to Avondale was a key factor in his decision.  This case should act as a warning to parties who may be considering not adducing expert evidence in similar cases.  Whilst the court may often be content to rely on its own expertise when assessing breach of duty in professional negligence claims against solicitors (and even then expert evidence may still be necessary in relation to quantum), this is very much an exception and parties should expect to face a significant uphill battle if they try to convince a court of negligence in other professional practices in the absence of supporting expert evidence.