Do I share Expert Witness Report?

[ZinniRae]

Hi - I have a professional negligence case against a Surveyor and have instructed a Law firm to write and send the Preliminary Notice and Letter Before Claim (issued under the Construction and Engineer pre action Protocol) . I have ended the instructions to the Law firm (to save ££) so am effectively a Litigant in person at this point. The solicitor for the Surveyor has asked for a copy of the Expert Witness Report and to be able to instruct their own Expert (under 10.1 of the Professional Negligence protocol (they disagree with the choice of protocol) . My solicitor has suggested holding it back until they get their own expert report and then provide it with their response to the Letter Before Claim. And then provide it during mediation or ADR. From what I read I should provide it else it is looked poorly on at later stages.

Is there a view here on what I should do? Many thanks for your help!

[atticus]

My view is that you should follow your solicitor's advice.

The professional negligence protocol does not require a claimant to provide his expert evidence at claim letter stage. Para 10.2 discourages fishing expeditions when requesting documents. See also the last sentence of para 10.2.

The surveyors should look at what they did (or did not do) for you and how they did it, and respond to your claim letter.

You may need to ask your expert to update his report to address the defence.

[ZinniRae]

My view is that you should follow your solicitor's advice.

The professional negligence protocol does not require a claimant to provide his expert evidence at claim letter stage. Para 10.2 discourages fishing expeditions when requesting documents. See also the last sentence of para 10.2.

The surveyors should look at what they did (or did not do) for you and how they did it, and respond to your claim letter.

You may need to ask your expert to update his report to address the defence.

Thanks Atticus (great name), very much appreciate this. I guess my concern is that (in the unlikely event) this goes to trial, the Judge could award costs against me for not providing it at this stage, noting that the report would be a key document (my view) under 10.1?

The other question is whether they must respond to the Letter Before Action and whether the must provide their Expert Report also? As it stands they have no evidence of the full loss (only what has been identified at a high level, and could simply say that without seeing this they dont see a reason to proceed? Very much appreciate the input.

[atticus]

I very much doubt costs would be ordered against you for not disclosing your report at this stage.

I expect that your claim letter will have given your reasons for saying that this surveyor has been negligent. That is what he needs to answer.

[atticus]

Just a second - is the report about the surveyor's negligence or your resulting losses?

[ZinniRae]

Just a second - is the report about the surveyor's negligence or your resulting losses?

Yes, well both really, I have an Expert Witness Report that says the Surveyor was negligent and this has resulted in a loss of X which forms the basis of the amount claimed in the Letter before claim...

[atticus]

If the amount of the loss you claim cannot be explained other than by disclosing the report, that appears to change things.

You could begin by asking whether the negligence is admitted or denied, and if denied, on what basis. That leaves quantum to a later stage.

[ZinniRae]

If the amount of the loss you claim cannot be explained other than by disclosing the report, that appears to change things.

You could begin by asking whether the negligence is admitted or denied, and if denied, on what basis. That leaves quantum to a later stage.

Thanks, I think my solicitors view is that the other side should have their Expert Report prepared without seeing my one first, in case they just use their one to attack my one. Effectively that it should be independent. Perhaps the right answer is to let them to their report (they have requested it) and then provide towards the end of the timeframes?

As an aside the LBC was issued under the Construction and Engineering Disputes Protocol, whereas the Surveyors have said this is completely wrong and they are treating it as if it were under the Professional Negligence Protocol. Does it matter? Seems to me like both are valid pathways?

[atticus]

You have said very little about the case. Your solicitor knows very much more. I suggest that you discuss his/her advice with him/her - have a detailed conversation about all the ins and outs of this.

[ZinniRae]

Thanks for this, appreciate the responses.

[Frank1]

Section 1 of both protocols state professional negligence of architect, engineers and quantity surveyors should be included under the Pre-Action Protocol for Construction and Engineering Disputes.
As quantity surveyors are not the same as building surveyors, the surveyor's solicitor appears to be right about the appropriate Protocol.

[ZinniRae]

Section 1 of both protocols state professional negligence of architect, engineers and quantity surveyors should be included under the Pre-Action Protocol for Construction and Engineering Disputes.
As quantity surveyors are not the same as building surveyors, the surveyor's solicitor appears to be right about the appropriate Protocol.

Thanks Frank, appreciate the response.

[ZinniRae]

You have said very little about the case. Your solicitor knows very much more. I suggest that you discuss his/her advice with him/her - have a detailed conversation about all the ins and outs of this.

Hi Atticus - I've just posed this... should give you more context, FYI really.

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