Professional negligence under Qatari law

Most people agree that a professional who is negligent in their work should be liable for the resultant damages. However, questions often arise as to “how deficient does the professional’s work have to be before that professional is classed as ‘negligent’” and “whether those pursuing or defending a professional negligence claim should provide supporting expert evidence”.

In a recent decision by the Qatar Financial Centre (QFC) Court in case no [2022] QIC (F) 20, our disputes team in the Doha office of Eversheds Sutherland was successful in persuading the Court that expert evidence is necessary to support a professional negligence case, setting an important precedent in the area of professional negligence under Qatari law.

What is professional negligence?

Broadly, professional negligence occurs when a professional fails to perform his or her skilled obligations to the required standard. However, defining professional negligence under Qatari law is not straightforward. Although many Qatari laws refer to the concept of negligence, there is no prescribed legal definition of ‘negligence’ in Qatari law. 

By way of comparison, English law generally applies a duty of reasonable care and skill on a professional providing a service (s.13, Sale of Goods and Services Act 1982) in the absence of an alternative contractual duty. In ascertaining whether a professional has breached their standard of care, their behaviour is generally judged against that of the reasonably competent practitioner having regard to the standards normally adopted in their profession (Midland Bank Trust Co Ltd v Hett Stubbs & Kemp). The test is objective, the standard required is not one of perfection, and the existence of an error in a professional’s work or judgement does not necessarily demonstrate negligence.

How is professional negligence addressed in Qatari law?

Qatari law generally supports the parties’ ability to agree the standard of care which is applicable between them. However, in the absence of a contractually agreed standard of care, Qatari law sets out an objective test to assess whether an individual’s conduct has been negligent. Specifically, Article 253 of the Civil Code states that if an individual has exercised such care as an ordinary person would, even if the desired purpose is not achieved, then an individual’s conduct will not be found to be actionably deficient.

In the absence of more specific provisions of law, a professional’s conduct is often measured against the objective standard prescribed by Article 253 of the Qatari Civil Code.  However, the courts of Qatar, and in the wider Middle East region, also apply different (and more stringent) tests to professionals in certain instances. These different professional standards have their roots in French and Egyptian law (on which some Qatari laws are based), and have found support within the works of renowned Egyptian legal scholar Al Sanhuri. 

The two main standards of care applied to professionals are referred to as ‘obligations of means’ (obligation de moyens) and ‘obligations of results’ (obligation de résultat). Although not universally adopted or codified, these two standards have been applied within judgments of Qatari and regional courts, and depend largely upon the profession of the individual in question.

1. ‘Obligation of means’ is generally applied to professions which involve activities with speculative or uncertain outcomes, or where it is acknowledged at the outset that the result cannot be guaranteed by the professional.  An example is a lawyer representing a client – the lawyer cannot guarantee the outcome for the client, and can only try his or her best to achieve a particular result.
2. ‘Obligation of results’ is generally applied to professions that provide a specific and measurable outcome.  For example, an engineer is required to produce a design for a building which is structurally sound and free of material defects.

Of course, there is a great deal of overlap between the way these two obligations can be applied to different professions.  This overlap can create uncertainty and confusion.  For example, ‘obligation of means’ is normally applied to lawyers, although it may be appropriate to apply ‘obligation of results’ in respect of tasks which are not speculative, such as the drafting of a specific contract.  Similarly, it may be appropriate to hold an engineer to ‘obligation of means’ when he is preparing state-of-the-art or untested designs, or passing judgement on an uncertain issue.

Professional Negligence Under the Laws and Regulations of the QFC

The Qatar Financial Centre (QFC) Contract Regulations (No. 3 of 2005) provide guidance on the applicable standard of care, addressing obligations, duties, and liabilities under Articles 55, 56, and 57 of the QFC Contract Regulations.

Article 55 distinguishes between two standards: ‘duty to achieve a specific result’, requiring a party to achieve specific results, and ‘duty of reasonable efforts’, requiring a party to make efforts that a reasonable person of the same kind would make in the same circumstances.

Article 56 provides guidance on determining the extent to which a party’s obligation involves a duty of reasonable efforts or a duty to achieve a specific result. Factors to consider include the contractual terms, the degree of risk normally involved, and the other party’s ability to influence performance.

Article 57 mandates that, when the quality of performance is unspecified, a party must render a performance of reasonable quality in the circumstances.

Professionals may be held to either an ‘obligation of results’ or a ‘duty of reasonable efforts’ standard, depending on their specific obligations. Factors such as contractual terms, risk, and the ability to influence performance must be considered when determining the applicable standard. In the absence of clear contractual provisions, professionals are expected to provide services of reasonable quality that is reasonable in the circumstances.

Requirement for expert evidence in professional negligence cases

Our team has been successful in persuading the QFC Court in case no [2022] QIC (F) 20 that presenting expert evidence is likely to be required in substantiating a professional negligence claim

Our legal team argued that the Court should not entertain the claim for negligent misrepresentation without supporting expert evidence. We relied on the English law principle established in Pantelli Associates Ltd v Corporate City Developments Number Two Ltd [2010] EWHC 3189 (TCC). As a general rule under English law, expert evidence is required in most claims for professional negligence in order to establish whether the conduct of a professional met the required standard of care. In Pantelli, the High Court found that it was “standard practice that where an allegation of professional negligence is to be pleaded, that allegation must be supported (in writing) by a relevant professional with the necessary expertise.”

The QFC Court agreed with our position and observed that “the test for a claim of professional negligence would normally be whether a relevant professional with the necessary expertise would not have acted in such a way…[t]his Court would normally expect supporting expert evidence to be provided to support the claim when it is launched. It would normally be unfair on a professional person not to do so.”

Notwithstanding the above, the Court clarified that “it is not necessary (in order to decide the issue) that we reach any conclusion as to whether in this Court it would normally be necessary for a claim for professional negligence to be supported, from the beginning, by expert evidence of the sort envisaged in Pantelli.”

While the QFC Court did not reach a conclusion on whether it would always be necessary to provide expert evidence in professional negligence claims, the Court’s observations set a clear expectation for future cases.

Conclusion

A professional consultant is usually well advised to agree the applicable standard of care within their contract. In the absence of an agreed standard, professionals are expected to provide services of reasonable quality that a relevant professional with similar expertise would have provided in the circumstances. 

In case no [2022] QIC (F) 20, our team has set a significant precedent in the area of professional negligence under Qatari law. This ruling establishes the importance of expert evidence in professional negligence cases, thereby shaping the law in this crucial aspect in Qatar.

Accordingly, the QFC court would normally expect supporting expert evidence to be provided in order to establish whether the conduct of a professional met the relevant standard of care.