LORD BOWEN is attributed with this famous advice to a jury in 1903: “We must ask ourselves what the man on the Clapham omnibus would think.”
Just over 50 years later, in Bolam (1957), McNair J pointed out that this much celebrated man (probably on a horse-drawn omnibus at the time!) could not be expected to give a reliable opinion in a case where some special skill is exercised.
So, what is to be expected of an insurance broker in regard to the duty of care to a client? Acting as a practising broker for over 40 years and as an expert witness for the past seven, I have been involved in an industry that has found itself regulated more and more: first, by voluntary regulation under the Insurance Brokers Registration Act 1977, then by the subsequent Codes of the ABI (Association of British Insurers) and the GISC (General Insurance Standards Council) and finally, now, compulsory regulation by the FSA.
As the regulatory machinery grinds on and on, we see more FSA initiatives. Although, in my experience, most professional negligence claims against brokers arise as a result of alleged failures concerning policy warranties, conditions and exclusions, the insured’s duty of disclosure and product unsuitability, there are other issues, such as ‘contract certainty’ and ‘treating customers fairly’, that may impact on a particular case and the broking expert will need to consider them as well as regulatory and procedural matters.
However, professional training and experience is not enough for the broking, or any other, expert.
There is also the crucial additional training that is needed in order to discharge their duty to the court.
Part 7 of the June 2005 Protocol for the Instruction of Experts to give Evidence in Civil Claims requires an expert to have appropriate expertise and experience and for them to be familiar with the general duties of an expert.
In seeking such training, I found obtaining the Cardiff University Bond Solon Expert Witness Certificate (CUEW) of immense benefit. The certification involves three assessed units: an assessment of your report, a video review of performance under cross-examination and an examination on law and procedure.
In addition, there are always other important training days available from a variety of sources, including those from Bond Solon and the Academy of Experts, to keep the expert on their toes as regards relevant changes, such as those recently introduced under Part 35 of CPR from 1 October last year.
The expert is well advised to build attendance at these into his diary.
His discerning instructing solicitor will expect no less from him!
by CARL G WOODROFFE of The Central Expert Partnership