A suit of armour?

Experts providing reports or giving evidence in litigation have so far '“ and perhaps rather lazily '“ been considered to be 'immune from suit'. What does this mean and is it correct? Where is the law heading? The issue of immunity from suit has attracted some interest recently, but, in practical terms, is there really a problem? In this article we deal only with the position of medical experts in personal injury and clinical negligence claims. There may be different criteria, for example, for accountants in commercial litigation, or doctors in criminal or disciplinary cases. For our purposes, there are three main ways a medical expert might wreak injury, be it physical or psychiatric, through giving evidence.

Physical and psychiatric loss

First, he may directly injure a claimant; for example, by a grossly excessively rough orthopaedic examination or by insisting on excessive x-rays or by aggravating a psychiatric condition through inappropriate questioning or testing. Frequent complaints are made by claimants that they came out of a medico-legal examination feeling sore or upset, but one feels these complaints are often made more in an attempt to discredit a defendant's expert than because genuine harm was inflicted. Here, the ordinary rules of negligence would apply '“ though proof might be very difficult.

The second and third methods are by misdiagnosing or by recommending unnecessary or disproportionately harmful treatment. In either of these cases, experts should qualify their opinion by insisting that the claimant consults their own treating doctor first (as most already do). The key here is reliance. It is obviously vital that both legal advisers and doctors understand and maintain the distinction between an expert acting as a treating doctor and as an expert witness; a doctor can do both, but often at their own '“ and their client/patient's '“ peril.

There is, however, a variant of misdiagnosis that might have indirect effect on a claimant; for example, if a problem was wrongly diagnosed or over-diagnosed resulting in a psychiatric condition; or in a claimant's belief in a clinician's diagnosis and prognosis that might significantly and deleteriously affect the claimant's functioning.

Financial loss

But experts are also capable of inflicting considerable financial losses on those instructing, or indeed the party. These may involve the payment of insufficient or excessive damages or creating wasted costs.

These are areas where public policy inevitably plays a part. There are conflicting pressures. On the one hand, experts should give their evidence independently and without being intimidated into expressing opinions they do not hold out of fear of suit and liability. Furthermore, litigation should mean finality. In other words, there should be no satellite litigation as to the conduct of the proceedings once those proceedings have run to a judgment. On the other hand, public policy suggests that experts should not be immune from the consequences of injury or loss they might inflict.

There are also human rights considerations, including article 6's right to a fair trial and article 1 of the first protocol, the right to possessions, but they have not been considered by the courts, nor are there any European rulings on this topic.

Considering immunity

The modern starting point is Stanton v Callaghan [1998] EWCA Civ 1176. The Court of Appeal distinguished between duties owed by an expert to a client as their adviser and the duties owed by an expert as an expert witness in a claim. The court struck out a claim against a surveyor who had advised his client that work to remedy subsidence to a house would cost £77,000. Subsequently, in litigation against the client's insurers, he agreed, as expert witness, that the work could be done for £21,000. Chadwick LJ said: '(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.'

It appears from this that the immunity would only arise after and because the expert gave oral evidence at trial. Chadwick LJ went on to say, however: '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, it seems, 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.' This seems to confine the immunity to cases where there has been a joint discussion, but the other two LJs (Otton and Nourse) seemed to cast the net of immunity wider than that.

It appears that not even malice on the part of the expert can defeat the immunity: 'No action lies against parties or witnesses for anything said or done, although falsely and maliciously and without any reasonable or probable cause, in the ordinary course of any proceeding in a court of justice' (per Kelly CB in Dawkins v Lord Rokeby [1873] 8 QB 255, reaffirmed in Silcott v Commissioner of Police for the Metropolis [1996] EWCA Civ 1311).

In several cases, including Stanton, the courts have declined to accept that removing experts' immunity would deter them from performing their duties correctly. These are 'floodgates' arguments, normally easily and readily dismissed. In fact, in Meadows v General Medical Council [2006] EWHC 146 (Admin), the Court of Appeal extended the immunity to disciplinary hearings but clearly only did so with great reluctance. The court recognised that the public interest demanded in some cases that the fitness of a doctor to practice should be investigated notwithstanding the immunity. The court invited Parliament to consider the problem.

Out of step?

In Jones v Kaney [2010] EWHC 61 (QB). J sued for damages in a routine personal injury claim. K, a psychologist instructed by J, seemed to support her case, but then, at joint statement stage, agreed with the other side that J was exaggerating. There were allegations that K had not argued her opinion with the other expert and that she had simply signed a pre-drafted joint statement without proper scrutiny. J was forced to settle for much less than she had hoped. J sued K, contending that Stanton was no longer good law since the enactment of article 6. Blake J held that he was bound by Stanton and struck the claim out on K's application.

Ominously for experts, however, he said: 'In my judgment a policy of blanket immunity for all witnesses, indiscriminately protecting witnesses as to fact and witnesses on the opposing side from expert witnesses retained by a party to advise them before and during the proceedings as to a pertinent issue in those proceedings, may well prove to be too broad to be sustainable and therefore disproportionate. The public benefit of truthful, accurate, reliable and frank evidence to the court is unlikely to need such a broad immunity. It can be enforced by the court of its own motion, or by professional bodies supervising the professional activities of the expert in question, including the activity of giving evidence to the court.' One can see myriad reasons why this particular claim would have failed on its facts in any event but, importantly, the judge has 'leap-frogged' the case to the Supreme Court which has recently given permission to appeal.

The immunity of suit enjoyed by experts might be considered out of step with the removal of immunity from advocates. Jones appears to be the only reported personal injury case in which a party has tried to sue their own expert for damages. There is no known case where an opposing party has done so, but if, for example, Bolam-negligent misdiagnosis of a psychiatrically eggshell claimant has resulted in a far greater claim, why should the insurers not be in a position to bring third party proceedings against the claimant's expert?

Wasted costs

The court has extensive power, anecdotally exercised frequently, to order recalcitrant experts to pay wasted costs. Perhaps legal advisers need to be more alert to highlighting the courts' costs powers. Threatening a costs order against one's expert could be an own goal but that may be preferable to having no evidence. It is more common that an expert gives trouble if they are out of their depth. Practitioners should be prepared to query their own experts and if necessary obtain a second opinion at a realistically early stage. Thus, if an expert has ventured into the realms of incompetence, immunity from suit never becomes a problem.