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9

A

great deal has been written about the

2011 judgment in

Jones v Kaney

[2011]

UKSC 13, in which the Supreme Court

removed the immunity traditionally enjoyed by

expert witnesses from suit for negligence for

things said or done in preparation for a hearing,

or when giving evidence to a hearing. Thus,

post-

Kaney

, if an expert provides negligent

expert evidence such that the client or those

instructing the expert suffer loss, that expert

can be sued for breach of duty in tort.

The grounds for liability were, however, quite

narrowly drawn, and there has been no great rush

to court to sue expert witnesses in the five years

since the judgment.

In a sense the court foresaw this in the ruling

itself: when addressing the argument that if

immunity was refused, expert witnesses would be

reluctant to accept instructions, the court decided

that immunity was not necessary to ensure an

adequate supply of expert witnesses. It cited the

decision in

Hall v Simons

[2002] 1 AC 615, which

effectively removed the comparable immunity

for advocates from negligence claims brought

by their own clients.

Hall

had not led to fewer advocates being ready

to perform their duty, so the court considered,

prophetically, that its decision would not diminish

the appetites of experts to perform theirs in the

future. Lord Philips said: ‘Whether professional

persons are willing to give expert evidence

depends on many factors. I’m not persuaded that

the possibility of being sued if they are negligent

is likely to be a significant factor in many cases in

determining whether a person will be willing to

act as an expert.’

International case law

Across the Atlantic, in relatively recent times, US

state courts have expanded the liability of expert

witnesses in negligence. In

LLMD of Michigan, Inc.

v. Jackson-Cross Co.

, 559 Pa. 297, 740 A.2d 186 (Pa.

1999), the Pennsylvania Supreme Court did so by

drawing a distinction between ‘substance’and

‘preparation’to avoid the doctrine of witness

immunity confirmed both by the Supreme Court

on an earlier occasion and in the leading US

Supreme Court case on witness immunity,

Briscoe

v. LaHue

460 U.S. 325 (1983). In essence, the

decision in

LLMD

imposed liability on the basis of

inadequate preparation of the expert evidence,

rather than the evidence itself.

The Supreme Court of Louisiana reached the

same result in

Marrogi v. Howard

805 So.2d 1118

(La. 2002), although other states have declined to

follow that road.

Courts in other parts of the world have followed

similar or more traditional routes, but with

Kaney

serving as a persuasive precedent throughout.

This should come as a wake-up call to all

professionals who give expert evidence, wherever

they may be, to look to their practices in respect

of their duties to the court, the provision of expert

reports, both written and oral, and the

presentation of their evidence.

Those who are members of professional

organisations also need to bear in mind that any

consideration of what amounts to professional

negligence in the discharge of their duties will

have regard to the practice statements and the

guidance note issued by their professional body.

Expert requirements

In essence, in order to act legitimately as an

expert witness, in addition to having the highest

level of expertise and experience in their

professional field, the Royal Institution of

Chartered Surveyors (RICS) believes practitioners

should:

„

„

Have a thorough grounding in at least the

basics of law and legal procedure, relative to

the jurisdiction in which they are giving

evidence to courts and other tribunals;

„

„

Understand how their role differs from that

>>

FEATURE

PRACTICE

Dr John Fletcher

and

Michael Williams

advise expert witnesses to consider their

practice in terms of their duties to the court and the presentation of their evidence

Experts need court skills as

well as technical expertise

Dr John Fletcher, pictured, is head

of RICS dispute resolution service

and Michael Williams FRSM is a

barrister of the Middle Temple and

the High Court of Australia

SJ 160/6

Expert Witness Supplement Spring 2016