UK: Is Expert Witness Immunity About To Be Abolished? A Case Note On "Paul Wynne Jones v Sue Kaney" [2010] EWHC 61 (QB)

Last Updated: 19 March 2010
Article by Jonathan Selby, Barrister

In Paul Wynne Jones v Sue Kaney, Mr Jones alleged that Ms Kaney provided negligent opinion evidence when she acted as Mr Jones' psychiatry expert in a previous personal injury claim arising out of a road traffic accident. Ms Kaney applied to have Mr Jones' claim struck out on the grounds that, as an expert witness, she enjoys an immunity from suit in respect of such matters.

The expert witness immunity is based upon Court of Appeal authority, Stanton v Callaghan [1999] 2 WLR 745. Mr Jones' case is that Stanton v Callaghan is no longer good law for two reasons: (1) that the immunity can no longer survive in light of the House of Lords' decision in Arthur Hall v Simons [2000] 3 WLR 543 (in which a barrister's immunity from suit was abolished); and (2) the expert witness immunity is inconsistent the right to a fair trial enshrined by Article 6 of the European Convention on Human Rights.

At first instance, before Blake J, Ms Kaney's argument succeeded. The Judge considered himself to be bound by Stanton v Callaghan. The Judge therefore struck out Mr Jones' claim.

However, in his judgment, the Judge also stated:

"However, although I conclude that it remains good law, I have doubts as to whether [Stanton v Callaghan] will continue to remain so for the reasons canvassed by the Claimant and the discussion summarised above. I conclude that there is a substantial likelihood that on re-examination by a superior court, with the power to do so, it will emerge that the public policy justification for the rule cannot support it."

The Judge therefore granted a certificate, pursuant to section 12 of the Administration of Justice Act 1969, to enable the Supreme Court to consider whether it would wish to grant leave to appeal to it, without the need for the appeal to be heard first by the Court of Appeal.

All eyes are now on the Supreme Court to see whether it will grant permission to appeal. If permission is granted, there is a real risk that the immunity may well be abolished, or at least severely curtailed. Indeed, this author argued for its abolition over seven years ago.

Please read article below which won first prize in the 2002 Bar Law Reform Essay Competition. 

* * * * * *

THE LIABILITY OF THE EXPERT TO THOSE WHO APPOINT HIM

"What if the expert gets it wrong?"

The Present Position

Experts have a limited immunity from proceedings for professional negligence. This immunity extends to evidence given by the expert in court or arbitration and to work which is preliminary to giving such evidence. The production or approval of his or her report would thus be protected, as would the content of the experts' joint agreement: Stanton v Callaghan [1999] 2 WLR 745. The immunity does not extend to work done for the principal purpose of advising the client as to the merits of their case, particularly if proceedings have not been started, or to advice as to whether the expert is qualified to advise at all: Palmer v Durnford Ford [1992] QB 483.

The public policy arguments which have been relied upon to confer immunity upon experts include:

  1. Immunity should only be given to an expert where to deny it would mean that he would be inhibited from giving truthful and fair evidence in court (see Palmer v Durnford at page 488, Stanton v Callaghan at pages 774-776); and
  2. The immunity must be necessary for the orderly management and conduct of the trial (see Stanton v Callaghan at page 768, per Chadwick LJ and pages 773-774, per Otton LJ).

In Landall v Dennis Faulkner and Alsop [1994] 5 Med LR 268, Holland J commented on the purpose of the immunity, in the context of experts' meetings, as follows:

"In my view, the public interest in facilitating full and frank discussion between experts before trial does require that each should be free to make proper concessions without fear that any departure from advice previously given to the party who has retained him will be seen as evidence of negligence. That, as it seems to me, is an area in which public policy justifies immunity. The immunity is needed in order to avoid the tension between a desire to assist the court and fear of the consequences of a departure from previous advice."

Possible Developments

"The White Book" (Spring 2002), at paragraph 35.12.3, states:

"But whether this immunity will survive without challenge seems questionable in the light of the decisions of the court in Stevens v Gullis [1999] BLR 394 when the incompetence of an expert witness effectively lost his instructing party the case, and in Hall v Simons [2000] 3 WLR 543, when the House of Lords removed the long-established principle of advocates' immunity, particularly if and when an expert fails to comply with his duty to assist the court, e.g. by ignoring the court orders in the particular case."

In Stevens v Gullis, the Defendant's expert breached several of the Court's directions, as well as CPR, Part 35, Practice Direction. The judge therefore debarred the Defendant from calling him and gave judgment against the Defendant. On appeal, the Court of Appeal upheld the judge's orders and Lord Woolf MR commented that the expert had demonstrated by his behaviour that he had no concept of the requirements placed upon him by the CPR.

Another case where the expert's conduct fell way below the necessary standards was Pearce v Ove Arup (2 November 2001) where Jacob J commented, at paragraph 60:

"At the end of his report, Mr Wilkey said he understood that duty. I do not think he did. He came to argue a case. Any point which might support that case, however flimsy, he took. Nowhere did he stand back and take an objective view as an architect as to how the alleged copying could have been done. Mr Wilkey bears a heavy responsibility for this case ever coming to trial – with its attendant cost, expense and waste of time..."

It might be considered obvious that the parties who instructed the experts in Stevens v Gullis and Pearce v Ove Arup could sue them for their conduct in those cases. Unfortunately, the case law is not yet sufficiently developed on this matter to provide such a definitive answer.

In the past, the courts have found that the public policy underlying advocate's immunity offers assistance: see, for example, Stanton v Callaghan [1999] 2 WLR 745, 759, Palmer v Durnford Ford [1992] QB 483, 488 and M v Newham LBC [1994] 2 WLR 554, 570.

In Arthur Hall v Simons [2000] 3 WLR 543, the House of Lords reconsidered the immunity of an advocate in court proceedings and, at page 551, Lord Steyn considered that the legal policy which seeks to encourage freedom of speech in court so that the court will have full information about the issues in the case has little, if anything, to do with any legal policy which requires immunity from actions for negligent acts. Indeed, Lord Steyn, without saying whether he agreed or not, referred to Peter Cane who argues in "Tort Law and Economic Interests" (2nd ed 1996) that paid expert witnesses ought to be answerable to their clients for the way they perform their professional duties.

Lord Steyn then went on to consider whether removal of an advocate's immunity would undermine his overriding duty to the court and concluded that it would not: see pages 552-553. In particular, he said that if the advocate's conduct was bona fide dictated by his perception of his duty to the court, there would be no possibility of the court holding him to be negligent: page 553F. There does not appear to be any reason why this logic should not apply to an expert witness.

Turning to the opinions of the other Judges, Lord Hobhouse stated, at pages 611-612:

"It is illuminating to consider the conceptual basis in the trial process for the witness immunity. It is that the witness, although called by a party, is giving evidence to the court. The witness's duty is to tell the truth to the court regardless of the interests of the party who has called him or who is asking him questions. This same scheme is spelled out in the new Civil Procedure Rules regarding expert witnesses. An expert witness is in a special position similar to that of the advocate. He is selected and paid by the party instructing him. Part of his duties include advising the party instructing him. If that advice is negligently given the expert, like the lawyer, is liable. But once the expert becomes engaged on providing expert evidence for use in court (C.P.R., r. 35.2; Stanton v. Callaghan [2000] 1 Q.B. 75) his relationship to the court becomes paramount as set out in the Civil Procedure Rules and he enjoys the civil immunity attributable to that function."

Lord Hoffmann came to a similar conclusion.

Therefore, it appears that there may be two possible approaches which could be adopted in relation to an expert's immunity:

  1. An expert is always immune from suit in relation to his oral and written evidence to the court (applying the analysis of Lords Hoffmann and Hobhouse); or
  2. An expert is not immune from suit but if his conduct was bona fide dictated by his perception of his duty to the court, there would be no possibility of the court holding him to be negligent (applying Lord Steyn's analysis).

The latter approach is consistent with the general view of the House of Lords in Arthur Hall v Simons that the possibility of actions in negligence would not distract an advocate from the performance of his duties to the court. It is also consistent with the proposition that each case should depend on its own facts: see Stanton v Callaghan at page 772 and Palmer v Durnford at page 489. Indeed, it seems highly arguable that where the expert's duties to the court mirror his duties to the client he should receive no immunity in respect of their performance; there can be no conflict between the duty to the court and the duty to the client. This argument is highly attractive because, after all, the expert is retained (often for a considerable amount of money) by a party to the action.

Post Hall v Simons

Three months after the House of Lords gave judgment in Arthur Hall v Simons, Eady J considered the liability of an expert for his evidence in court in Raiss v Palmano [2000] All ER (D) 1266, (2002) 18 Con LJ 348. The specific criticisms of the expert witness in the trial to which Raiss related manifested themselves when the expert, in cross-examination, conceded that:

  1. Although he had held himself out as expert on open-market property transactions in central London, he was not expert on the Covent Garden property market;
  2. Contrary to his stated qualifications, he was not in fact on the Panel of Arbitrators to the RICS.

Eady J held that a witness is entitled to immunity for reasons of public policy even in respect of evidence that turns out to have been dishonest. He stated that:

"One reason underlying the immunity is that there should be no undue inhibition upon a witness being prepared to resile from his earlier statements if he subsequently recognises them to be wrong, for whatever reason, or to need qualification: see, for example, the judgment of Chadwick LJ [in Stanton v Callaghan]. If a resiling witness was immune only in respect of the change of heart, but could still be sued in respect of the original statement resiled from, that situation would hardly serve the public policy objective."

Eady J also held that there was no reasonable prospect of proving that the specific representations were causative of any damage.

However, it is stressed that Eady J's judgment in Raiss v Palmano made no reference at all to Hall v Simons. It may not have even been cited in argument. For this reason alone, this judgment has to be treated with extreme caution.

Post Hall v Simons, an expert witness is still immune from suit in respect of actions in defamation. The expert is entitled still to rely on the defence of privilege which applies to actions in defamation: see NLJ (22/2/02) Vol 152, No 7020, page 272. That proposition seems quite correct and is consistent with Lord Steyn's analysis in Hall v Simons (at page 551).

Conclusion

Despite Raiss v Palmano, it still seems possible that there will be a restriction of the expert witness' immunity. However, the extent of that restriction is far from clear and parties would be well advised to make sure that the expert that they select is competent in the first place.

The articles and papers published by Keating Chambers are for the purpose of raising general awareness of issues and stimulating discussion. The contents must not be relied upon or applied in any given situation. There is no substitute for taking appropriate professional advice.

For further information on how our members can assist you, please contact the Senior Clerks, John Munton and Nick Child, in the first instance, on +44 (0) 20 7544 2600. They and their teams of Clerks will be pleased to advise you on the member of Keating Chambers appropriate to your requirements.

© KEATING CHAMBERS

www.keatingchambers.com

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