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Wanted 鈥� alive 鈥� expert witness of opinion. Isn鈥檛 it good to feel wanted 鈥� to be in demand? Actually, if you are in the mood to begin legal proceedings, arbitration, even adjudication against an architect, surveyor, engineer, get yourself an expert witness of opinion first.

Mr and Mrs Overall owned some land in Bourne End, Buckinghamshire; they hoped to get planning permission for a single bungalow and also get a 鈥渇oot in the door鈥�. ACD Landscape Architects was engaged for their planning application. That鈥檚 called a professional services contract. Professional because of good old fashioned professional snootyness about who sticks out above the rest. The landscaping architect did its best but the planning authority folk turned down the application. But Mr and Mrs Overall were keen to get their bungalow and their foot in the door approved. So they appealed. They brought in reinforcements. They paid out not only for our landscape architect professional but also for a planning barrister, a specialist planning solicitor, and hey-ho for a planning consultant. A whole army of professionals came. None of it worked. The appeal failed.

This case saw the lawyers defeat the strike-out by getting an expert report in the nick of time

Mr and Mrs Overall baulked at paying their architect鈥檚 bill. So he told his solicitor to sue. Back came the Overalls鈥� defence and counterclaim. The defence said that the professional had not only been in breach of contract but had been negligent as well. It was said that the landscape architect in his planning work ought to have produced a full 鈥渓andscape and visual impact assessment鈥�. The Overalls鈥� counterclaim for their 鈥渇oot in the door鈥� was a cool 拢5m alleged loss.

Now then, this is where you expert witnesses of opinion play a big role; or rather Mr and Mrs Overall should have engaged you for your expert opinion about the standard of care to be achieved by a person who calls himself a professional; more particularly a landscape architect professional. The Overalls鈥� defence and counterclaim had no expert report pinned to it. You can鈥檛 attempt to kick a professional in the shins unless an identical professional has said that he or she has fallen below the line of competence and hasn鈥檛 behaved to professional standards. Got it?

Well the lawyers for the landscape architect saw a knock-out blow become available to them. They applied to the court for what鈥檚 known as a strike-out. And if the court gives a thumbs up to that application that鈥檚 that; it鈥檚 all over for the Overalls. The idea of having to have an expert report to sue a professional is an embedded rule of practice. This is the second time in the space of a few months that this topic has come up. The first one saw the case stopped. This second one, ACD vs Overall, saw the lawyers for the Overalls defeat the strike out by getting an expert report in the nick of time. The reason it still came to court is because the Overalls were resisting paying the wasted costs of lawyers and court fees of the architect. The court said pay up.

You can鈥檛 attempt to kick a professional in the shins unless an identical professional has said that he or she has fallen below the line of competence

This so-called rule of must have an expert report is not rock-solid. The judge did outline circumstances that bring a professional negligence complaint that does not need an expert report from the outset. It鈥檚 when facts can be 鈥減leaded鈥� that indicate behaviour said to be below par and those facts stick out like a sore toe. And it鈥檚 likely to be in court that the judge will give a nod about the need for an expert report. In other words it鈥檚 not always necessary to spend out on an expert report so early on.

Eventually though the tribunal will want to hear about professional standards. 鈥淚t takes one to know one鈥� - provided the fellow professional isn鈥檛 a competitor in the same arena.

What about that foot in the door? Fascinating move here. The Overalls claimed that the negligence of the architect and failure to get planning for one bungalow lost them the glint they had in their eye to later re-apply for their site to have oodles more homes. Their site would then rocket in value to 拢5m. Won鈥檛 do said the court and struck that part of the claim out. The fee to be paid to the architect was for planning for one bungalow, and damages for negligence (if shown) only runs to the consequences related to that retainer. This is a good case for lawyers, arbitrators and adjudicators to read on professional negligence rather than going in feet first.

Tony Bingham is a barrister and arbitrator at 3 Paper 好色先生TVs Temple