UK: An Unwelcome Compliment for Experts?

Last Updated: 13 April 2011
Article by Andrew Horrocks, Anna Bradley and Andrew Forsyth

The Supreme Court has abolished immunity from liability in negligence for expert witnesses. This is a landmark judgment made by seven, not the usual five justices, because of its perceived importance. The Court of Appeal has separately highlighted the perils of "expert shopping" by ruling that parties will normally be required to disclose any reports issued by an existing expert witness before permission will be granted for a change of expert. The Law Commission has also released its recommendations addressing the role and reliability of expert evidence in criminal proceedings.

The position of expert witnesses has therefore received a considerable amount of judicial attention over the course of recent weeks. Expert witnesses and those instructing them will need to be aware of the heightened risks that they face in the light of these developments.

IMMUNITY FROM CIVIL SUIT FOR EXPERT WITNESSES ABOLISHED

Expert witnesses may no longer rely upon the traditional immunity from civil suit for their participation in civil proceedings. In Jones v Kaney (2011) the Supreme Court has abolished this longstanding immunity. This means that expert witnesses retained by a litigant may face liability in negligence to the client. This ruling has raised concern about "opening the floodgates" to claims against experts by unsuccessful litigants.

Background

Kaney was a consultant clinical psychologist instructed by the claimant's solicitors to provide a report on the psychological consequences for the claimant of a road traffic accident in which he had been knocked off his motorcycle by an uninsured, drunk and disqualified driver. Her initial report expressed the view that the claimant was suffering from post-traumatic stress disorder (PTSD). She provided a second report nearly two years later that suggested that while the claimant did not have all the symptoms of PTSD, he was suffering from depression. Following a report from the opposing expert opining that the claimant was exaggerating his physical symptoms, the court ordered preparation of a joint statement by the experts.

The joint statement submitted to the court was damaging to the claimant's personal injury claim: it expressed the view that his psychological reaction to the accident was no more than an adjustment reaction and that he had been deceitful and deceptive in his reporting of his symptoms. There was subsequently a clear admission by the expert that she had signed the joint statement when she did not agree with the contents, having failed to read the opposing expert's report before the discussions were held. Although this admission was made before settlement of the underlying claim, the court did not grant permission to amend the joint statement. After the claimant settled his claim he sued the expert, claiming he had received significantly less than he should have done but for her negligence.

The issue

The issue before the Supreme Court was a narrow one. The Court did not decide if the expert had been negligent or not but had to decide whether the act of preparing a joint witness statement is one in respect of which an expert witness enjoys immunity from suit. Previous authority, notably Palmer v Durnford Ford (1992), held that the scope of immunity did not extend beyond work that was preparatory for giving evidence at trial and therefore did not cover preliminary advice from experts. However, Lord Phillips considered that the dispute inevitably opened up the broader issue of whether public policy justifies conferring any immunity on an expert witness. He noted that this issue had never before been challenged; expert witness immunity had previously been simply accepted as a matter of established authority.

The holding and the rationale

In holding that an expert witness enjoys no immunity from liability in negligence relating to the performance of his duties in that capacity, the majority judgments addressed the three central policy arguments raised by the expert for the retention of the immunity:

  • Reluctance to testify: would expert witnesses be discouraged from providing their services without immunity to suit? Lord Phillips pointed out that to provide professional services is to face the risk of suit, against which risk professionals customarily insure. Furthermore, the risk of professional disciplinary proceedings or wasted costs orders already provides a disincentive of this nature. Lord Dyson expressed the view that the risk of a negligence claim was simply one factor amongst many in deciding whether to give expert evidence.
  • Full and frank disclosure: would expert witnesses be discouraged from performing their duty to the court because of the risk of suit from their client? Lord Phillips's view was that witnesses of integrity will always perform their duty to give their honest opinion to the court in circumstances where they subsequently consider their initial opinion was over-optimistic or did not appreciate a particular weakness. He saw no reason why, in performing that duty to the court, an expert witness should be concerned that it would result in being sued for breach of duty. As Lord Dyson put it, "most [experts] act honestly and conscientiously because that is what professional men and women do".

    Further, both Lord Phillips and Lord Dyson expressed the view that the duty owed to the client in these circumstances was to perform his function as an expert with the reasonable skill and care of an expert drawn from the relevant discipline, which included the duty to perform the overriding duty of assisting the court. The majority therefore considered that there was no conflict between an expert's duty to the court, and the proper performance of the expert's duty to the client when giving evidence. Lord Collins was perhaps more realistic in observing that the real risk to an expert who changed his opinion would be an attack by his client for negligence in respect of the views previously held (as set out in their final or revised report) rather than in respect of the revised opinions given in the witness box.
  • Vexatious claimants and satellite litigation: the majority were sceptical that there would be a flood of cases, noting that this had not occurred after the abolition of barristers' immunity in Arthur JS Hall v Simons (2002). Lord Phillips maintained that it would be difficult for an unsuccessful litigant to bring a negligence claim against an expert citing the likely need for (and cost of) a second expert to attack the work of the first.

Lord Hope and Lady Hale, dissenting, made clear their view that the majority were underestimating the risk of claims against experts.

They also expressed concern that the scope of the abolition of immunity was not clear cut, and referred to the use of witness evidence from court appointed professionals such as psychologists in matters such as family proceedings.

DISCLOSURE OF PRIVILEGED EXPERT REPORTS

The Court of Appeal has recently decided that courts should normally require a party to disclose its existing expert report as a condition for obtaining permission to instruct a new expert, effectively requiring that party to waive privilege as the price for the change in expert. In Ricky Edwards-Tubb v J D Wetherspoon PLC (2011), the claimant had put forward the name of three potential experts in his letter of claim as part of the process for nomination and agreement of experts under the Personal Injury Pre-Action Protocol. However, the expert report served in conjunction with the Particulars of Claim was provided by a fourth individual. The defendant discovered that the claimant had earlier obtained a report from one of the three nominated experts and applied for disclosure of that report.

The Court referred with approval to earlier authorities and held that if an order has been made for permission to serve a report from a named expert, and a report has been obtained from that expert, then it should be disclosed as condition for allowing the party to select another expert, in order to discourage "expert shopping". The Court justified this principle on the basis that an expert witness's duty is to the court, and there was no reason to deprive another party of the benefit of the views of an expert who has reported.

The Court saw no reason to take a different approach merely because the report had been obtained at the pre-action stage. It should be emphasised that this case was a personal injury claim, in which formal expert reports are required at an early stage with a view to being used in subsequent court proceedings. In many other cases (professional negligence, for example) in which expert evidence is used this does not always happen. Nevertheless, the decision illustrates the danger that can arise if a court direction names a particular expert, and that expert has already prepared a report which the instructing party no longer wishes to serve. In those circumstances, the need to vary the direction will provide the court with a mechanism (and a risk to the party who obtained it) for ordering that the report should be disclosed.

NO PROPERTY IN EXPERT WITNESSES

A recent court decision has clarified that the "no property in a witness" principle may even extend to experts in some circumstances. The claimant in Meat Corporation of Namibia Limited v Dawn Meats (UK) Limited (2011) had communicated with Mrs Burt-Thwaites with a view to instructing her as an expert witness. She declined the instruction because of a timing issue. When later there was slippage in the timetable, the defendant sought to instruct Mrs Burt-Thwaites. The claimant objected on the basis that she had received privileged information.

Mr Justice Mann held that simply because she was in receipt of privileged information, it did not necessarily follow that the opposing party could not instruct her (though she may be unable to make use of that information in her work). As it transpired, much of the information was not of relevance to her evidence. She was allowed to continue as the expert.

EXPERT EVIDENCE IN CRIMINAL PROCEEDINGS IN ENGLAND AND WALES

The Law Commission has recently published its recommendations for legislation on the admissibility of expert evidence in criminal proceedings. The Commission seeks to introduce a more stringent reliability-based test of admissibility, to be applied by the trial judge, before the evidence is put before a jury. A judge would have to be satisfied, by reference to certain guidelines, that expert evidence is based on, and supported by, sound principles, techniques and assumptions that have been properly applied to the facts of the case. The Commission envisages that for areas of non-scientific professional expertise, with well accepted practices and methodologies (such as accountancy), expert evidence will be admissible if the expert has followed accepted practices and sufficiently explained the method and approach taken.

PRACTICAL IMPLICATIONS

Expert witnesses will rightly find it difficult to share in Lord Phillips' optimism that the end of their immunity from suit will not expose them to greater risk of negligence claims. That said, it is important to recognise the scope of the immunity was relatively restrictive even before the Supreme Court's decision in Jones v Kaney. Immunity did not encompass initial advice to clients on which significant decisions about the commencement and pursuit of litigation may have been based in many cases. The abolition of the immunity is therefore of more limited effect than suggested by talk of "opening the floodgates". The main new threat posed by the abolition of the immunity is that of a claim for negligence in respect of the expert report itself, where the report contains opinions that were not part of or were different from earlier advice from the expert.

Nevertheless, Jones v Kaney demonstrates the courts' increasing readiness to accept that, where experts and other professionals who provide services in connection with the litigation process have failed to meet the standards that are expected of them, they should not be able to escape the consequences. Further, the Law Commission's proposals in the context of criminal proceedings also foreshadow more rigorous scrutiny of experts' opinions in the court room than has sometimes been the case in the past. For now, immunity from suit remains in place for witnesses of fact, but (as the minority judgments in the Supreme Court suggested) it may only be a matter of time before that immunity is challenged in respect of witnesses such as company directors who owe contractual or tortious duties.

Recent case law also provides litigation lawyers with food for thought. The care that is needed when instructing experts is demonstrated by the problems that may arise when it becomes necessary to change expert (as illustrated in Ricky Edwards-Tubb v J D Wetherspoon PLC and the Meat Corporation of Namibia Limited case), and by the proposed reforms to criminal proceedings which may result in expert evidence being rejected as inadmissible.

An underlying theme of all these developments is the overriding nature of the expert's duty to the court. That duty has been reaffirmed, but found not to be inconsistent with the duty to the client. It is clearer than ever that an expert who fails to take a robustly objective approach with the instructing party may place themselves in peril, without now having any immunity to fall back on.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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