The Gazette 1996

GAZETTE

JANUARY/FEBRUARY 1996

number of cases, including the Irish case of Hanafin -v- Gay nor (24 September 1990) where Egan J held that "the test for considering whether there has been professional negligence by a solicitor is whether the solicitor was guilty of such failure as no other, solicitor of equal status and skill would be guilty of if acting with ordinary care". He referred to the Dunne -v- National Maternity Hospital case [1989 1 ILRM 7351 in which the Supreme Court had held that a medical practitioner was negligent in diagnosis or treatment only if guilty of such failure as no other practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care, concluding that an analogous test should be applied to a claim for damages for professional negligence against a solicitor. It must be borne in mind that if an expert is advising in relation to a matter that occurred some years previously, his advice should be given in the light of the "state of the art" existing at the time the negligence allegedly occurred. Authoritative works may not be put in as evidence but expert witnesses when cross examined on their opinion and the grounds for it may refer to such What then about the expert who it is alleged was negligent in the course of giving evidence in court. In the case of Sutcliffe -v- Thackrah [1974 AC 727) it was held that "it is well settled that . . . witnesses enjoy an absolute immunity from any form of civil action being brought against them in respect of anything they say or do in court during the course of a trial". Accordingly an expert will not be amenable to any action against him for negligence causing damage as a consequence of anything said in the witness box. works as part of their general knowledge of their subject. The position of the expert acting as an arbitrator appears to be equally clear. In his Judgment in the same case. Lord Salmon stated that "the law has for generations recognised that public policy requires that

(arbitrators) shall be accorded the immunity to which I have referred". That is not to say that arbitrators (and others) have no obligation to exercise care - it means simply that "the law takes the risk of their being negligent and confers upon them the privilege from enquiry in an action as to whether or not they have been so" on the ground that such is "vital to the efficient and speedy administration of justice". However, difficulty on occasion can arise whether the expert was acting as an expert (and accordingly amenable to an action for damages if he was negligent) or as an arbitrator (when he is not). In the Sutcliffe case (already referred to), an architect employed by a building owner negligently issued interim certificates for substantially more than the proper amount to the builder, the building owner consequently suffering loss. The House of Lords held that in the absence of specific agreement the architect was not acting as an arbitrator between the parties. He was bound to act fairly in making his valuation and liable to the building owner in negligence. In the case of Arenson -v- Casson Beckman Rut ley & Co. (on appeal from Arenson -v- Arenson) [ 1977 AC 4051, Lord Wheat ley put forward certain indications that the expert was in fact acting as an arbitrator viz: (a) There is a dispute or difference between the parties which has been formulated in some way or another. (b) The dispute or difference has been remitted by the parties to the person to resolve in such a manner that he is called upon to exercise a judicial function. (c) Where appropriate, the parties must have been provided with an opportunity to present evidence and/or submissions in support of their respective claims in the dispute.

While the foregoing is of material help, whether an expert is acting as an expert or an arbitrator in any given set of circumstances may nevertheless in the last analysis have to await judicial determination.

D.R. Pigot

At tent ion all Account ing Sof tware Users! The Technology Committee is anxious to set up User Groups for most or all the accounting software products which are in use in practices. User groups are highly beneficial as they provide a forum for sharing and learning from others' experiences, good and bad as well as enabling users to have a common and therefore stronger voice when dealing with suppliers. The Committee will nominate one of its members to convene and chair initial meetings of the group which hopefully can be arranged at a location most convenient'to the majority of users of the product concerned. If you are interested in taking part please write to Veronica Donnelly at the Society setting out:- Your firms' name and address; The name of software product; The supplier of software product; The name of the person in your firm with overall responsibility for the accounts package.

Technology

Committee

Solicitors Confidential Helpline Just Call 284 84 84

(d) The parties have agreed to accept his decision.

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