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EXPERTS UNDER FIRE - AT LAST! (THE FIRST BARREL)

AN ARTICLE by Peter Scrafton FIRRV, FCIArb, MRSA(Hon) Solicitor (Non-Practising)

March 2012.

I have to confess to a certain degree of satisfaction that expert witnesses can now be sued in negligence!  As a solicitor myself, I was trained to get accustomed to be the first to feel the wrath of an aggrieved client, whether such wrath was justified or not.  I taught myself that a lawyer who wins his client’s case only justifies the client’s own belief, while the lawyer who loses is an incompetent fool.  This is why I always told people to blame their solicitor – everybody else did.


The gilded gentlemen of the Bar, were, of course, immune from suit, certainly in respect of what they said or did in Court: until two cases in the 1960’s rattled the cage.  Barristers started, prudently, to equip themselves with professional indemnity insurance.  The traditional basis of immunity was that of privilege (in the litigation sense), and this was chipped away, and eventually the immunity from suit for negligence fell, although that for defamation remains.

That original basis pre-dated the modern law of negligence by over 400 years, and, in particular, the recognition of the possibility of liability for negligent misstatement. It also dates back to an era long before it became common for forensic experts to offer their services under contracts for reward. The immunity has its origin in a reaction to an actual or perceived tendency on the part of disgruntled litigants, or defendants in criminal proceedings, to bring proceedings for libel or slander against those who had given evidence against them. Thus the immunity originally took the form of absolute privilege against a claim for defamation and it extended to all who took part in legal proceedings, including judges, juries and others.

 

So – solicitors and barristers were in trouble, but nobody apparently thought of attacking witnesses  for negligence until 1992,  in Palmer -v Durnford Ford when the Court decided that immunity would only extend to what could fairly be said to be work which was preliminary to giving evidence in court, judged perhaps by the principal purpose for which the work was done. Work done principally for the purpose of advising the client was not covered. 

 

Until last year, Stanton –v- Callaghan [was the leading case on immunity conferred in respect of a claim brought by a litigant against his own expert witness. After a review of authority, including lengthy citation from Palmer, Chadwick LJ summarised their effect as follows:

 

"(i) an expert witness who gives evidence at a trial is immune from suit in respect of anything which he says in court, and that immunity will extend to the contents of the report which he adopts as, or incorporates in, his evidence; (ii) where an expert witness gives evidence at a trial the immunity which he would enjoy in respect of that evidence is not to be circumvented by a suit based on the report itself; and (iii) the immunity does not extend to protect an expert who has been retained to advise as to the merits of a party's claim in litigation from a suit by the party by whom he has been retained in respect of that advice, notwithstanding that it was in contemplation at the time when the advice was given that the expert would be a witness at the trial if that litigation were to proceed. What, as it seems to me, has not been decided by any authority binding in this court is whether an expert is immune from suit by the party who has retained him in respect of the contents of a report which he prepares for the purpose of exchange prior to trial – say, to comply with directions given under RSC, Ord 38, r 37 - in circumstances where he does not, in the event, give evidence at the trial; either because the trial does not take place or because he is not called as a witness."

 

He concludes (pp 101-102):

 

"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."

 

And so to Jones –v- Kaney [2011] UKSC 13 the case which gives rise to this article, as it was this decision of the Supreme Court  which ended the immunity from action in negligence for the professional expert witness for acts or omissions arising in the course of preparation for trial.

 

Citing the judgment of Lord Dyson:-

 

“It is not in dispute that an expert who acts in civil litigation owes his client a duty to act with reasonable skill and care. He owes this duty in contract…..and in tort…. He holds himself out as a skilled and competent person. The client relies on his advice in determining whether to bring or defend proceedings, in considering settlement values and in appraising the risks at trial. The client also relies on him to give the court skilled and competent expert opinion evidence.

This was rightly acknowledged by Chadwick LJ in….. Stanton –v- Callaghan:

 

‘Mr Callaghan was a professional man who undertook, for reward, to provide advice within his expertise. The expectation of those who engaged him must have been that he would exercise the care and attention appropriate to what he was engaged to do. I would find it difficult to accept that Mr Callaghan did not share that expectation."’

 

“But an expert witness who is retained to act for a client in relation to litigation also owes a duty to the court. CPR 35.3 provides: "(1) It is the duty of experts to help the court on matters within their expertise. (2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid."

 

“The existence of this duty is affirmed by para 4.1 of the Protocol for the Instruction of Experts to give Evidence in Civil Claims 2005 which provides: ‘Experts always owe a duty to exercise reasonable skill and care to those instructing them, and to comply with any relevant professional code of ethics. However when they are instructed to give or prepare evidence for the purpose of civil proceedings in England and Wales they have an overriding duty to help the court on matters within their expertise (CPR 35.3). This duty overrides any obligation to the person instructing or paying them.’

 

“This Protocol was drafted by the Civil Justice Council with the assistance of work done by the Expert Witness Institute and the Academy of Experts. …

 

“There is no conflict between the duty owed by an expert to his client and his overriding duty to the court. His duty to the client is to perform his function as an expert with the reasonable skill and care of an expert drawn from the relevant discipline. This includes a duty to perform the overriding duty of assisting the court. Thus the discharge of the duty to the court cannot be a breach of duty to the client. If the expert gives an independent and unbiased opinion which is within the range of reasonable expert opinions, he will have discharged his duty both to the court and his client. If, however, he gives an independent and unbiased opinion which is outside the range of reasonable expert opinions, he will not be in breach of his duty to the court, because he will have provided independent and unbiased assistance to the court. But he will be in breach of the duty owed to his client…...”

 

The reader will be finding here some  words and phrases which have a certain familiarity  to those who read the  requirements by RICS of Chartered Surveyors acting as expert witnesses.

 

In the next part of this article I will look at the abolition of the immunity, and some of the consequences

 

©J.P. Scrafton, 2012

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