30 March 2011
In a majority decision in Jones v Kaney, the Supreme Court has
today overturned centuries of established legal wisdom and held
that expert witnesses involved in legal proceedings no longer
enjoy protection from liability for negligence.
In this article, Christopher Stanton, partner at Hill Dickinson, provides a summary of today’s groundbreaking decision, and looks at its implications for expert witnesses and insurers.
The background to Jones v Kaney
The appellant had been involved in a road traffic accident and brought a claim for damages for personal injury and loss. His solicitors instructed the respondent, a clinical psychologist, as an expert witness. She advised that he was suffering from post traumatic stress disorder (PTSD). The other driver's insurers obtained an expert report stating that the appellant was exaggerating his symptoms. The experts were ordered to produce a joint statement. They spoke by telephone. The insurers' expert produced a draft joint statement which was detrimental to the claim. The draft report stated that the appellant had not suffered PTSD as a result of the accident. The respondent said that she had not seen the insurers' expert report and later asserted that the joint statement did not reflect her views. However she had signed the joint statement.
The appellant was unable to obtain permission to obtain further evidence and was forced to settle on terms. He brought a claim against the respondent for damages for the loss of opportunity to recover higher damages as a result of her negligence.
Bound by the Court of Appeal's decision in Stanton v Callaghan [1], the action was struck out at first instance. However the judge recognised that it was an issue of public importance. The appeal was leapfrogged to the Supreme Court.
The issues
The Supreme Court was asked to determine whether an expert witness could rely upon immunity in relation to the preparation of a joint witness statement. However the judgment covers broader issues of whether an expert witness enjoys immunity from liability when acting as an expert witness.
Judgment
In the lead judgment the President of the Supreme Court, Lord Phillips, rejected the argument that the overriding duty an expert owed to the court to give full and frank evidence would conflict with the separate duty of care owed to the client. An expert initially provides advice for the benefit of a client. If further evidence emerges, or the expert is later persuaded that his initial view was wrong, then there is a duty to both the court and to the client to make the concession. An expert may be reluctant to change his mind, but that is not due to the risk of being sued. If he fails to give full and frank evidence the expert already faces the risk of a wasted costs order or disciplinary proceedings.
Lord Phillips queried why an expert requires immunity from liability for his negligence to enable him to fulfil his duty of care to a client. The onus is upon the expert to justify the cloak of immunity. He noted that The House of Lords [2] had swept away advocates' immunity yet this had not resulted in a noticeable reluctance of advocates to act or a significant increase in claims by disappointed litigants. Professional indemnity insurance is available to cover expert witnesses and professionals owe duties of care in their everyday activities which run the risk of negligence claims from clients.
By removing immunity, disappointed litigants will now be able to pursue claims against expert witnesses. However, as Lord Phillips pointed out, they will normally require expert evidence. This will protect experts from vexatious claims, which would not have supportive evidence and would be susceptible to strike out. By stark contrast, in the case before the Supreme Court, the respondent admitted that the signed joint statement did not reflect her views.
In the judgment of Lord Phillips, immunity from negligence claims for experts involved in legal proceedings should be abolished.
Lord Dyson agreed that the prospect of a client pursuing a negligence claim is unlikely to tempt an expert to disregard his overriding duty to the court. In his judgment “the mere fact that the immunity is long-established is not a sufficient reason for blessing it with eternal life”. It is not in the public interest to justify denying a remedy to a person who suffers loss as a result of the breach of an expert witness' duty.
Two dissenting judgments were delivered by Lord Hope and Lady Hale. They described the “'obvious” conflict between the duties owed by an expert witness to the court and to the client. They were concerned by the prospect of “mission creep” and the unforeseen consequences of lifting expert witness immunity on family, public law and other proceedings. In their judgments, if there is a need for reform it is a matter of public policy and therefore an issue for the Law Commission and Parliament, rather than courts.
Implications
The Supreme Court has abolished immunity from litigation for expert witnesses involved in legal proceedings. This extends both to reports prepared in contemplation of legal proceedings and views expressed in court. It does not extend to claims for defamation (for which advocates also retain immunity).
The decision will result in claims against experts by disappointed claimants. However, if a claimant does not have supportive expert evidence, the claim will be doomed to failure (unless, as in this case, breach of duty is admitted). A wave of litigation is unlikely. If an expert has acted in breach of duty, causing loss to a client, he is likely to try and resolve the claim on a commercial basis in the usual way.
The decision of the Supreme Court enables all parties, and insurers, to hold their experts to account for the contents of their reports. Experts must ensure that they understand and comply with their duties to the court and to their client. They must not act contrary to those duties - for example by signing a joint statement which they have not read and with which they do not agree.
All experts - from medical and construction professionals who undertake regular expert witness work to apiarists and zoologists who are appointed on a one-off basis - must ensure that they have adequate professional indemnity insurance which covers them for acting as an expert witness. Premiums for professionals engaged as expert witnesses may rise to reflect the risk of a claim but any increase is unlikely to be prohibitive and should not make expert witnesses reluctant to act.
Solicitors should ensure that any expert whom they instruct on behalf of a client has adequate professional indemnity cover.
It is inevitable that claimants will test the boundaries of the decision. However vexatious claims will get short shrift. Parliament may investigate issues of public policy in areas such as family law. However it is unlikely to result in expert witnesses enjoying blanket immunity from litigation where they have failed to fulfil their duty of care to the client and to the court.
Conclusion
To paraphrase Lord Dyson, the life has been sucked from expert witness immunity. A party who suffers loss as a result of his expert's liability now has a remedy. Only time will tell whether experts will face a trickle or a wave of claims. However experts must prepare now to ensure that they comply with their obligations to their clients and have adequate professional indemnity cover to meet any claims.
We will shortly be running training workshops in London and Liverpool for expert witnesses, insurers and brokers. If you are interested in attending, please email me to register your interest.
If you have a particular query or issue, please contact:
Christopher Stanton
christopher.stanton@hilldickinson.com
+44 (0)151 600
8332
[1] Stanton v Callaghan [1998] 4 All E.R.961
[2] Arthur JS Hall & Co v Simons [2000] 3 All E.R.673
