Morning all
I don’t suppose that English law has much impact on your daily work but nonetheless I thought it might be worth copying you with this e-bulletin that went out from our office in London, as it may be of some interest to all who provide expert witness consulting services. In short, the English Supreme Court has decided to abolish the immunity from suit that expert witnesses have previously enjoyed in relation to their work on legal cases.
Hope all is well with all of you, and best regards
Alastair
ALASTAIR HENDERSON
Herbert Smith
Supreme Court abolishes expert immunity
The UK Supreme Court yesterday handed down judgment abolishing the immunity expert witnesses have enjoyed for over 400 years. In Jones v Kaney [2011] UKSC 13 the court held, by a majority of 5 to 2, that there is no justification for granting expert witnesses immunity from suit in relation to their participation in legal proceedings nor in relation to any views they express in anticipation of court proceedings.
The majority did not accept that potential liability would dissuade an expert from accepting instructions, or would prevent an expert who was acting with diligence and integrity from exercising his overriding duty to the court. Accordingly, the court held that an expert witness who does not act with reasonable skill and care should be held accountable.
Key points:
- Expert witnesses no longer have immunity from suit for professional negligence claims arising from their views or evidence in relation to legal proceedings.
- Such claims may be brought in respect of breaches of duty that took place before the decision was handed down, subject to any limitation defence.
- In practice, successful negligence claims against expert witnesses are likely to be rare. In light of the expert’s overriding duty to assist the court, an expert will not be liable merely because he expresses a view which is unhelpful to the client’s case.
- Witnesses, including expert witnesses, will continue to enjoy an absolute privilege against claims in defamation arising from their evidence.
Practical implications:
- Professional indemnity insurance premiums for expert witnesses may increase as a result of the abolition of the immunity, and this may result in an increase in fees charged by expert witnesses.
- The decision may result in an increased focus on clauses to limit or exclude liability in an expert’s terms of engagement.
- It remains to be seen whether the decision will (contrary to the Supreme Court’s view) have a “chilling” effect on the willingness of professionals to act as expert witnesses in litigation.
Background
The background facts are summarised in our e-bulletin on the first instance decision in this case. In brief, Mrs Kaney was instructed to act as expert in a personal injury claim brought by the claimant. Although her initial conclusions were favourable, the joint statement she agreed with the defendant’s expert contained two extracts that were very damaging to the claimant’s case.
The claim was then settled for considerably less than would otherwise have been the case, and a negligence claim was brought against Mrs Kaney alleging that she had been poorly prepared for the joint conference, had signed the report despite it not reflecting what she claimed she had agreed during the conference, and had forgotten key aspects of the case.
The case came before the High Court in January 2010 on a summary judgment application by Mrs Kaney to strike out the claim on the ground of expert witness immunity. Blake J felt bound by Court of Appeal authority (Stanton v Callaghan [1998] QB 75) to hold that an expert witness enjoyed immunity from suit, but granted a certificate to allow any appeal to leapfrog straight to the Supreme Court. The Supreme Court heard the claimant’s appeal in January 2011.
Supreme Court decision
In the view of the majority (led by Lord Phillips), the starting point is that every wrong should have a remedy and any exception to this rule must be justified as being necessary in the public interest and should be kept under review. Accordingly, although expert immunity was long-established, the onus was on the expert to justify the immunity behind which she sought to shelter.
The majority concluded that there are no longer any policy reasons for retaining the immunity of expert witnesses from liability to their clients for breach of duty in negligence or contract. The majority considered, and dismissed, a number of arguments for upholding the immunity including:
- Removing the immunity would discourage experts from providing their services
The majority could see no justification for this assertion. Other professionals who provide services which involve a duty of care are at risk of being sued. These professionals continue to provide these services, seeking insurance as necessary. There is no evidence that the appetite of barristers to take on instructions has diminished following the abolition of their immunity by the House of Lords in Hall v Simons [2002] 1 AC 615.
- The immunity is necessary to ensure that expert witnesses give full and frank evidence to the court.
A concern was raised that a potential liability for negligence may render the expert less willing to express views contrary to his client’s interests, either at a joint meeting or in court. The majority did not accept this argument. Indeed it was felt that the most likely effect of potential liability on the part of the expert would be greater caution in preparing the initial report on the client’s case (which was generally to be encouraged), rather than to inhibit frankness at a later stage.
- Immunity protects experts from vexatious claims
The majority doubted that removal of the immunity would lead to a proliferation of vexatious negligence suits against experts, pointing out that barristers had not experienced a flood of such claims since their immunity was abolished.
Having considered these factors, the majority of the Supreme Court was not satisfied that there is sufficient justification to allow an expert witness to continue to benefit from immunity from a claim that he performed his services negligently. However, that did not affect the long-standing immunity enjoyed by witnesses of fact, nor the immunity of expert witnesses insofar as it relates to defamation claims arising out of their evidence.
Lord Hope and Lady Hale, who delivered dissenting judgments, viewed the issue from the opposite perspective. In their view, witness immunity is a long-established principle such that any exception to it, and not the rule itself, should be justified. Neither could see sufficient basis for removing the immunity in relation to claims for negligence against experts. If any change was to be made, it was more appropriately a matter for Parliament than the court.
Comment
In reaching its decision to abolish immunity from suit for expert witnesses, the majority of the Supreme Court was clearly influenced by the fact that advocates no longer enjoy immunity from suit following the House of Lords decision in Hall v Simons.
The majority considered the position of an expert witness to be much closer to that of an advocate than a witness of fact. Both Lord Phillips and Lord Dyson expressed disagreement with the comment of Lord Hoffman in Hall v Simons that an expert witness owes no duty of care to his client in respect of the evidence he gives to the court. This may be true of a witness of fact, but not an expert. Like the advocate, the expert witness owes a duty to exercise reasonable skill and care in providing services to the client. The majority emphasised that this duty includes, and does not conflict with, the overriding duty to assist the court, which may require the expert (or advocate) to act in a way which does not advance the client’s case.
The majority of the Supreme Court has expressed confidence that experts will not be dissuaded from providing their services as a result of their new exposure to professional negligence claims. Whether that is the case remains to be seen. It is of course true that the abolition of immunity for advocates has not resulted in any shortage of advocates prepared to pursue claims on behalf of clients, and even before this judgment experts had no immunity against disciplinary proceedings (as a result of Meadow v General Medical Council [2007] QB 462) or wasted costs orders (Phillips v Symes (No 2) [2004] EWHC 2330) or civil suits in respect of their advice as to the merits of a party’s claim (Palmer v Durnford Ford [1992] QB 483).
Further, the majority took pains to point out that it will not generally be straightforward to establish negligence against an expert witness. As Lord Dyson stated, “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.” Lord Brown commented that liability for experts should be “highly exceptional” and urged the courts “to be alert to protect expert witnesses against specious claims by disappointed litigants”.
Even if the supply of expert witnesses is not affected by this decision, however, the cost of their services could well be. This new exposure could result in an increase in the cost of insurance cover for experts, which may be passed on to the underlying client by way of an increased fee charged for their work.
Herbert Smith LLP
