#3655 - Expert Immunity - Civil Procedure

ESSAY PLAN 3 – Expert immunity

Against

Jones v Kaney (2011) – SC abolished an expert’s immunity from liability in negligence when acting as an expert witness. Court can direct that there should be a discussion (CPR 35.12) between party experts followed by a joint statement. Whilst the discussions themselves are privileged (CPR 35.12(4)), the joint statement is not privileged as becomes available to court (35.12(3)); although it is not formally binding on the parties but will be difficult to sidesteps The expert acknowledged the joint statement did not reflect her true opinion – she signed the joint statement because she felt pressured to.

High Court just issued a certificate under s12(1) Administration of Justice Act 1969 that the case should proceed directly to the SC.

Reverses the CoA’s decision in Stanton (2002) – held that an expert is immune from liability in negligence when agreeing to a joint statement factual witness immunity)

= expert is potentially liable to his instructing party for negligence in the giving of an opinion, the presentation of a report, the giving of evidence at trial, and for the manner in which he conducts meetings between experts

The case does not abolish the absolute privilege against claims in defamation that expert witnesses continue to enjoy along with witnesses of fact, the judge, jury and lawyers involved in the proceedings.

Majority – every wrong should have a remedy; this would only be departed for good reason. No evidence to suggest that expert witnesses, who it must be presumed are professional and conscientious, would behave discreditably by modifying their opinions from those they truly held because they feared an aggrieved client may seek redress against them.

CPR r.35.3 states that an expert has a duty to help the court on matters within his expertise and this overrides the expert’s duty to his client. The majority in the SC found that the expert thus owes a duty to his client to comply with his duty to the court so there is in fact no conflict between the expert’s duty to the court and that owed to his client.

Lord Phillips – significant that expert witness immunity has already been eroded. Meadow – expert witnesses can be subject to disciplinary proceedings for evidence given in court proceedings where an expert’s fitness to practice is in issue.

Phillips v Symes (no.2) – Smith J: expert witnesses can be liable for wasted costs orders for their reckless or grossly negligent advice/ conduct during proceedings. Andrews thinks this is preferable because of high burden and the aggrieved party’s primary recourse for financial compensation under the costs system is against the litigant who hired the expert.

Lord Collins – the potential effect of sanctions from a professional body, which can lead to loss of livelihood or professional reputation, are more serious than the effects of civil proceedings by a dissatisfied client.

Arthur JS Hall – HoL abolished an advocate’s immunity from liability in negligence including for court hearings and for advice preparatory to court proceedings. The majority of the SC compared the role of the expert witness with that of the advocate and found each owed a duty both to the court and to their client. The removal of advocates’ immunity had not caused advocates to neglect their overriding duty to the court and nor had this change precipitated a “flood of...claims from disappointed litigants”.

BUT Hughes (2011) – “questionable whether this comparison is apt. Advocates have greater experience of court proceedings than experts; advocates will have undertaken professional training in the legal process; they will carry liability insurance; whereas some expert witnesses may rarely give evidence and not necessarily have insurance. If the expert is a joint, single expert witness then a duty of care is presumably owed to both parties, but an advocate will not be in this curious position”.

Expert witnesses can insure against liability for negligence.

Lord Phillips – it is not in itself negligent for an expert to change his opinion and indeed if he is justified in changing his opinion his duty to the court would oblige him to do so.

Expert’s role is distinguishable from a factual witness who owes no duty of care to anyone when giving evidence at trial.

Expert witnesses continue to owe their primary duty to the court and it is arguable that abolition of the immunity will reinforce compliance with that duty rather than lessen it – expert will have even greater incentive to ensure his opinion is impartial and independent from the outset rather than favourable to his client because an unjustifiable opinion is liable to be changed or watered down when challenged in court. If this occurs it may lead to the loss of a case or a reduction in damages and if the expert was negligent in giving his original opinion he may face a claim from his client if his client relied upon that favourable opinion when commencing proceedings.

Lord Brown - Will improve the quality of expert evidence – give sustainable opinions not partisan opinions which they may be compelled to resile from. This will lead to a “sharpened awareness of the risks 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.”

Edis (2007) – “expert witness immunity from suit does not perform a sufficiently useful function to justify its continued existence, and that compliance with the duty to the court would be enhanced by its removal”.

` The CPR imposes a duty on the expert, but it has no methods of enforcement. The rule is based on the powerful public policy that witnesses should not be deterred from assisting the court by the fear that they may be subject to adverse consequences if the interests of any party (particularly their client) are damages by their opinions....BUT... “a duty without sanctions is not a duty but an aspiration. It is in the public interest, as well as that of the litigants, that experts should not be negligent, and their overriding duty to the court requires them, amongst other things, to be reasonably careful.....the potential of liability will require experts to be more moderate in the way in which they express their opinions and they will be far more eager to point out the limits of...