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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
works as part of their general
knowledge of their subject.
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.
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.
(d) The parties have agreed to accept
his decision.
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
40