EXPERT IMMUNITY UNDER THREAT
Article by Giles Tagg
Solicitor CMS Cameron McKenna
April 2010
Introduction
Expert witnesses currently benefit from a blanket immunity from civil liability in relation to evidence provided in civil proceedings. The rationale for this immunity from civil suit is found in various case law. Perhaps the key case is Stanton v Callaghan [2000] QB 75 where it was stated that experts should be able to comply with their overriding duty to the Court and give evidence “freely and fearlessly” without an underlying concern of repercussions from their instructing client.
Expert immunity is currently under threat. In 2000, the House of Lords in Hall v Simons [2000] UKHL38 abolished advocates’ immunity from civil suit in respect of their performance in Court. Experts’ immunity now faces a similar challenge. Permission has recently been granted for the Supreme Court to consider granting leave to appeal the first instance case of Jones v Kaney [2010] EWHC 61, in which an expert claimed immunity as a defence to a claim by a disgruntled former client. It may well be that experts’ immunity will suffer the fate of advocates’ immunity and fail to survive a thorough probing by the Supreme Court.
The role of experts
Experts play a fundamental role in litigation, particularly in cases in the Technology and Construction Court, which almost always require technical expertise. Experts often become part of the litigation team from an early stage and their professional opinion can be a deciding factor in determining whether to pursue a claim. Experts are involved not only in informing their instructing client on the merits of a claim, but also in educating judges on technical areas outside of their knowledge and experience. In complex cases, this can form a large part of a dispute. In performing their role, an expert owes two duties: a contractual duty to his instructing client and, in the event of any conflict, an overriding duty to the Court.
Current position
As things stand, an expert witness can be sued in respect of private advice to the client, but not in respect of evidence provided in civil proceedings. This includes answers given in the witness box, but also includes the content of experts’ reports used in a court case and comments made in joint discussions with other parties’ experts.
The Court does have the power to sanction poorly performing experts in a number of ways. Firstly, experts can be publicly criticised in judgments. For instance, in Skanska v Eggar [2005] EWHC 284 the judge stated, when assessing costs, that “the evidence of [the expert] generated a great deal of out of court time and expense and the subsequent hearing time was a red herring of little value”. In SPE International v PPC (UK) Ltd [2002] EWCH 881, the judge stated that the expert’s “main difficulty is that he has no relevant expertise … [and] I doubt if there has often been an expert less expert than he”. This very public form of censure should motivate experts to fulfil their role with diligence and care, because after such criticism further engagements (which are relatively well paid) are unlikely to materialise.
Secondly, costs can be ordered directly against an expert witness. In the case of Phillips v Symes [2004] EWHC 2330 the Court joined an expert witness as a Respondent when the costs of the case came to be allocated on the basis that the expert “acted recklessly or in flagrant disregard of his duties to the court”. This is an analogous position to that of advocates with wasted costs orders. The Court felt that the prospect of an order to pay costs against a poorly performing expert should not deter a proper expert from giving evidence in a free and unconstrained manner.
Thirdly, and most drastically, it is also possible for the Court to debar an expert witness’s evidence. In Stevens v Gullis [2000] 1 All ER 527 the judge debarred the Claimant from calling an expert witness shortly before trial. This was because the expert had repeatedly and manifestly failed to comply with his obligations under CPR Part 35 and failed to understand the nature of his overriding duty to the Court.
Notwithstanding the above array of sanctions, the principle of expert immunity has survived to date. In the heavily publicised General Medical Council v Meadow [2006] EWCA Civ 1390 the Court of Appeal affirmed the extent of experts’ immunity. In that case the Court was tasked with considering whether experts’ immunity could be extended to provide immunity from disciplinary proceedings. Given that the purpose of disciplinary proceedings was to protect the public, the Court of Appeal concluded that the regulatory bodies took precedence over a common law right of immunity and were entitled to investigate the matter for the protection of the public. However, the principle of immunity in civil proceedings was affirmed.
Meadow also contained obiter comment on the differences between experts and witnesses of fact, both of whom currently benefit from immunity from suit. On this point, the Attorney General emphasised that the justification for witness immunity as stated in Stanton applied with less force to experts than it did to witnesses of fact. The rationale for this comment was that the expert witness is a professional who is providing his opinion evidence for reward. The Attorney General suggested that the prospect of liability for poor advice to his instructing clients should not prevent an expert witness providing accurate evidence in civil proceedings.
Jones v Kaney
This case could bring an end to expert immunity. Mr Jones sought damages for personal injury caused by a road traffic accident. He instructed a clinical psychologist, Dr Kaney, to advise on the psychological aspects of his injury, in particular Mr Jones’ suffering of post-traumatic stress disorder (PTSD). Dr Kaney formed the view that Mr Jones was suffering from PTSD. However, following a telephone discussion with the opposing expert, Dr Kaney signed a joint statement agreeing that Mr Jones’s condition did not amount to PTSD, and that she found Mr Jones to be deceptive and deceitful. Dr Kaney later denied that the joint statement reflected what was agreed in her telephone discussion with the Defendant’s expert, and explained that she felt “under pressure” to sign the statement. Mr Jones was unable to obtain permission from the Court to instruct a different expert and as a result of the joint statement, the claim settled for a sum considerably less than was expected had Dr Kaney not signed the joint statement.
Mr Jones subsequently brought an action against Dr Kaney for negligence and Dr Kaney pleaded, in defence, expert immunity under the principle in Stanton. Mr Jones’ case is that (a) the immunity can no longer survive in light of the abolition of advocates’ immunity and (b) the immunity is inconsistent with the right to a fair trial under Article 6 of the European Convention on Human Rights. Given that the Court of Appeal would be bound by its own previous decision in Stanton, the case has recently been granted a “leapfrog” certificate, meaning the Supreme Court is currently considering granting the right to appeal direct to itself to hear and decide the issue.
Discussion
As mentioned, there is a precedent for the removal of immunity in relation to civil proceedings. In the case of Hall v Simons [2000] UKHL 38, the House of Lords decided to abolish advocates’ immunity from civil suit. Until that time, advocate immunity was justified on a similar basis to that currently enjoyed by experts, namely that the prospect of civil suit could undermine an advocate’s overriding duty to the Court by making them fearful of being sued by a client. Under CPR Part 35, experts owe a similar duty to the Court. Although Hall confirmed that all witnesses should be able to express themselves freely, the position of an expert witness, who provides opinion evidence for reward, was not deemed analogous to a witness of fact.
Given this fairly recent removal of advocates’ immunity, it is a distinct possibility that the Supreme Court will take this opportunity to remove the blanket immunity enjoyed by expert witnesses.
The abolition of expert immunity can be justified on several grounds. An expert’s role in litigation can be absolutely central to the success or defeat of a claim. In Meadow it was concluded that any assessment of immunity on a case-by-case basis would be inappropriate, as an expert must be able to know with certainty, when giving his evidence, whether or not he benefits from immunity. However, in many quarters this blanket immunity is seen as unjustifiably broad. Arguably, it does not give careless or even irresponsible experts sufficient motivation to take appropriate care over their work.
Since it was established in Hall that fear of civil suit from advocates’ instructing clients should not adversely affect their overriding duty to the Court, why should the same argument not apply to expert witnesses? Experts, with their duties to the Court, arguably bear more resemblance to advocates than to witnesses of fact. Both Stanton and Meadow seem to betray the fact that immunity is on shakier grounds when it concerns a professional providing a service for payment. In these circumstances there is mounting weight to the argument that the ordinary principles of professional competence should apply.
Abolition of blanket immunity could tighten up the expert witness industry. Those that choose to provide expert witness evidence would do so in full knowledge of the risks and would have additional motivation to perform their duties with diligence and care. In many fields experts are plentiful and, inevitably, the standards achieved by experts are variable. In the current economic climate with litigation becoming increasingly commonplace, notably in the construction industry, the danger is that the quality of expert evidence will worsen (as new entrants seek to undertake this sort of better-paid work).
If immunity was abolished, poor experts would find themselves as Defendants in claims by their instructing clients. Their professional indemnity insurance premiums would inevitably rise but that might act as an effective deterrent to maverick experts.
Conclusion
Jones presents a timely opportunity for the Supreme Court to consider and perhaps to abolish, rather than enshrine, the principle of expert immunity. The removal of advocates’ immunity in 2000 and the tenor of recent judicial comment suggest this is a distinct possibility.