Calling the experts

A negligent expert witness can destroy a party's case. Despite this, at the moment, expert witnesses enjoy immunity from actions in negligence in relation to preparation for or taking part in a trial on the basis of public interest. However, it may be that the recent case of Jones v Kaney [2010] EWHC 61 (QB) has sounded the death knell for this immunity. Is there a chance that it will survive, and are there any lingering public policy reasons for it to remain?

In Jones, the defendant expert had applied to strike out a claim brought against her for negligence, claiming expert witness immunity. Mr Justice Blake held that he was bound by case law establishing the principles and the scope of expert witness immunity, primarily the case of Stanton v Callaghan [2000] QB 75. The judge rejected the claimant's argument that Stanton was no longer binding law following the coming into force of the Human Rights Act 1998 on 2 October 2000 but he expressed doubts as to whether Stanton would remain good law if tested by a higher court. Since the Court of Appeal would likewise be bound by Stanton, the judge gave the claimant leave to appeal straight to the Supreme Court. While doing so, he indicated that the public policy reasons behind expert witness immunity may now no longer exist.

Moving with the times

Experts' immunity, as upheld in Stanton, was largely based on the reasoning that there should not be a conflict between their duty to the court and fear of reprisal if they departed from previous advice. This had, in the words of Otton LJ, 'long been thought uncontroversial', both in relation to expert and advocate immunity. In Stanton, the court relied heavily on the established principle of advocate immunity that had existed for over two centuries and, more recently, been set down in the case of Rondel v Worsley [1969] 1AC 191 and explored further in Saif Ali v Sidney Mitchell and Co [1980] AC 198. However, in the landmark case of Arthur J S Hall v Simons [2002] 1 AC 615, the House of Lords had the opportunity to take stock of the arguments for and against the immunity of advocates.

The result was that the Lords swept away entirely the Bar's immunity. They did so on the basis that public policy moved with the times.

Much of its reasoning, for example increased professionalisation of advocates, can also apply to experts. Most significantly, it decided that the principles underpinning immunity that had applied both to experts and advocates, and were the basis of the decision in Stanton '“ for example possible divided loyalty '“ were no longer appropriate.

The immunity currently afforded to experts is a partial one, in particular, since they are immune from negligence only in respect of acts which have a principal and proximate connection to a hearing, although this is fairly wide in scope. In recent years, there has been a rising tide of opinion that the time is ripe for a challenge to the principle of expert witness immunity.

The impact of removed immunity

With all this in mind, and in the light of the decision in Hall, are there any public policy reasons for retaining expert immunity? It could be argued that an expert is actually in a position more analogous to a witness of fact than an advocate and should therefore remain free to give truthful evidence in court without fear of reprisals by way of litigation. Furthermore, abolition of expert witness immunity would have a significant impact on the appointment and role of expert witnesses. Although in Stanton the idea that experts would cease to provide their services merely because they could be found liable for negligence was dismissed, there would bea practical impact.

Experts who may not currently have insurance to cover their work, primarily smaller independent experts, would need to consider this. It may not be cost-effective for some, causing them to cease to act as experts.

That said, this is the case in a wide range of professions, and it could be considered preferable to have fewer experts that are all fully insured.

While the justices of the Supreme Court must still decide whether or not they hear Jones (which they are likely to do soon) the stage seems set for a radical re-assessment of the law on expert witness immunity.

In Hall, the House of Lords considered that the world had changed since Rondel in 1967, and removed the immunity of advocates. It seems likely that the justices of the Supreme Court will, for similar reasons, extinguish expert's immunity. If they do, a new field of professional negligence will emerge '“ with an initial rush of cases likely.