Case Commentaries

Publication Date01 Jul 2011
AuthorRosemary Pattenden
DOI10.1350/ijep.2011.15.3.381
SubjectArticle
IJEP15-3-final.vp CASE COMMENTARIES
CASE COMMENTARIES
CASE COMMENTARIES
Expert witness immunity from suit in negligence—United Kingdom
An expert who contracts with a client for a fee to provide the client with an expert
opinion owes the client a duty of care. Should the law exempt the expert from
liability for negligence in or related to court proceedings? Until Jones v Kaney [2011]
UKSC 13 this question had not been addressed by a top court, although it had been
discussed by US state courts, most of which denied the expert witness immunity,
see, for example, Marrogi v Howard 805 So 2d 1118 (2002). By a 5:1 majority, the UK
Supreme Court held that a retained (‘friendly’) expert witness can be sued for
negligence by his client for negligent misstatements during litigation. This
decision does not alter the absolute immunity enjoyed by the expert witness
against being sued for defamation. It also leaves unaffected the position of an
unfriendly expert witness (i.e. one paid by an opponent), an unpaid expert witness
and a witness of fact.
The context in which the Supreme Court made its pronouncement was an action
for negligence against a clinical psychologist. She had been retained by the
claimant during proceedings arising from a road accident. That action was
defended by an insurance company. After producing two reports that supported
the claimant’s case, the clinical psychologist signed a joint statement drafted by a
consultant psychiatrist instructed by the insurance company which was very
damaging to the claimant’s case. The clinical psychologist subsequently admitted
that the statement she had signed did not express her true opinion. The court did
not allow the claimant to have the statement amended, so he had to settle his
claim for significantly less than would have been achieved had the clinical
psychologist not signed the joint statement.
Precedent was against the negligence action succeeding. In Stanton v Callaghan
[2000] QB 75, the Court of Appeal had held that a litigant could not sue his own
expert witness for negligently preparing a joint report with the insurers’ expert
witness. At the time of the Stanton judgment advocates were immune from
liability in negligence for their in-court and court-related work (Saif Ali v
Sydney Mitchell & Co. [1980] AC 198). In Stanton, the Court of Appeal was persuaded
doi:10.1350/ijep.2011.15.3.381
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CASE COMMENTARIES
that similar policy arguments justified immunity from suit in negligence for the
court-related work of a retained expert witness. After Stanton, in Arthur JS Hall & Co.
v Simons [2002] 1 AC 615, the House of Lords reversed its position on immunity for
advocates without questioning the immunity of the expert witness. It was inevi-
table after that decision that the expert witness’s immunity would be challenged.
In Jones v Kaney a majority of the court said that it was for those who want the
immunity to persuade it that the benefits of retention outweigh those of
abolition.
It would not be right to start with a presumption that because the
immunity exists it should be maintained unless it is shown to be
unjustified. (at [51], per Lord Phillips)
The proponents of the immunity offered three reasons for its retention:
1.
If expert witnesses can be sued, some experts may be deterred from
offering their services as witnesses;
2.
Expert witnesses may not inform the court or, during court directed
discussions, an opposing expert, of a change of opinion;
3.
If liability in the original action depended on expert opinion evidence,
the negligence action would reopen the issue of liability.
In the majority’s opinion, these arguments did not justify immunity. An expert
can already be sued for negligently advising for or against litigation. Is the expert
overcome by fear and apprehension as the day of trial approaches? It is open to
expert witnesses to protect themselves by professional indemnity insurance. In
any case, it would be difficult for a disgruntled client to instigate vexatious
litigation anyway. If the client had no money, no one would pay for the action, and
if the client did have money, a case without merit would be struck out at an early
stage. If the allegedly negligent opinion was given in connection with a criminal
trial in which the client was convicted, the negligence action would be stayed as
an abuse of process unless preceded by a successful criminal appeal. Lord Phillips
noted that lifting the advocate’s immunity has had no ill effects. Indeed, Lord
Brown and Lord Collins believed that abolition was likely to have beneficial conse-
quences. It would sharpen
… awareness [amongst expert witnesses] of the risk of pitching their
initial views of the merits of their client’s case too high or too
inflexibly, lest these views come to expose and embarrass them at a
later date. (at [67], per Lord Brown)
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There was no risk of experts having to choose between their duty to the client and
to the court (as to which see the Civil Procedure Rules 1998, r. 35.3; the Criminal
Procedure Rules 2010, r. 33.2, Practice Direction (Family Proceedings: Experts) [2008] 1
WLR 1027 para. 3) and since the duty the client is subordinate to the duty to the
court.
The two dissenting justices, Lord Hope and Lady Hale, placed the onus of
argument on the party seeking to abolish the immunity which they (unlike the
majority) claimed had been confirmed for all forms of civil action by the House of
Lords in Watson v M’Ewan [1905] AC 480, a Scottish action for slander and breach of
confidence. They were not satisfied that the best policy was abolition. Lord Hope
said that protection from all civil claims ensured that expert witnesses gave
evidence fearlessly. Lady Hale thought it was more important for courts to obtain
reliable evidence than to protect the clients of expert witnesses. She attached no
significance to the fact that proceedings could already be brought against an
expert for perjury, contempt of court, wasted costs, perverting the course of
justice or professional misconduct (which could have more serious repercussions
for the expert witness than a civil action in negligence). These exceptions to
absolute immunity were all designed to support
the court’s interest in witnesses behaving properly: telling the truth,
obeying court orders or respecting the undertakings given to the
court, behaving professionally so as to justify the court’s confidence
in their expertise and not wasting the time of the court or the other
parties … They are not there to protect the interests of the witness’s
client. The exception which we are being asked to make is to protect
the interests of the client. That is a significant departure from
existing principles. (at [177])
Lady Hale pointed out that the case before the Supreme Court was a run-of-the-mill
one in which an expert had been instructed by one party to give an opinion only. It
was desirable that the Law Commission be asked to look into the full implications
of sweeping away the expert witness’s immunity, including where the expert is
jointly instructed by both parties or instructed by the court, or called to give
evidence of fact as well as opinion. Might abolition lead to higher insurance fees or
the introduction of exclusion clauses into contracts to give expert evidence? What
impact would there be in criminal, public law and family cases?
If the exception is made, it will clearly have to apply between expert
witnesses and their clients in all kinds of civil proceedings, before all
kinds of courts and tribunals. (at [181])
260
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CASE COMMENTARIES
The Irish Law Commission reviewed the immunity of the expert witness in a
Consultation Paper issued in January 2009 and came to the same conclusion as the
two dissenting Justices of the Supreme Court. A factor that moved the Law
Commission was the small pool of potential expert witnesses available in Ireland.
In most fields of expertise, this problem does not exist in the United...

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