Applying the test for professional negligence

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Middle Level Commissioners -v- Atkins [2013] CILL. TCC. Akenhead J.

Middle Level Commissioners (MLC) are a drainage authority in Norfolk who engaged Atkins to undertake a feasibility study in connection with a proposed new pumping station. The local authority advised Atkins in writing that this would be a permitted development which did not need any formal approvals. Also Atkins consulted with 26 different local bodies and received no objections to the proposed development. Atkins advised MLC that it also considered that, in their opinion, planning permission was not required but that if MLC wanted a definite answer they could apply for a “Certificate of Proposed Lawful Use”. Atkins had advised that this was unnecessary, so MLC didn’t bother.

Subsequently two local residents, Mr and Mrs Peacock, challenged what MLC were doing as not having planning permission. They sued MLC for judicial review and MLC negotiated an out of court settlement paying the Peacocks a sum of money. MLC then sued Atkins for £60,000 comprising the sum they had paid to the Peacocks and also the return of certain fees charged by Atkins.

MLC maintained that no appropriately competent and experienced professional planner would have given the advice which Atkins gave. They were therefore allegedly negligent.


Each side produced an expert witness to agree with their position, but MLC’s expert witness agreed in cross examination that different planners may form different views. He conceded that it was possible for a competent planner to form the view that these works did not require planning permission and did constitute a permitted development.
The case against Atkins was therefore dismissed.

In this case the claimant failed to make out a breach of any duty on the part of the defendant professional person. The test which is applied to professional negligence claims is whether the defendant professional acted in a way which no member of the relevant profession who was reasonably well informed and competent/experienced would have done.

The mistake so many “expert witnesses” make is to assume that because they personally would not have acted in a certain way, therefore the defendant was negligent. What matters is to look at what the profession as a whole does, examining the whole range of opinions and approaches, then demonstrating to the court that one understands the whole range of approaches, and is not simply saying “I would not have done it that way“. If behaviour is to labelled as negligent, it must be shown on a balance of probabilities to be outside the range of what any normally competent and experienced professional in that field would have done.

For more information, help or advice please contact Rob Langley on 0191 211 7975 or email [email protected]