End of the road?

The old rules around the liability of experts may change shortly. The case of Jones v Kaney [2010] EWHC 61 (QB), currently before the Court of Appeal, may lead to the immunity which protects the expert witness being called into question.

Currently, the basic rule, which originates from the 1870s (Dawkins v Lord Rokeby [1873] 8 QB 25), is that witnesses, including experts, cannot be sued for what they say in court proceedings. This is a significant exception to the principle that a wrong should not be without a remedy, as well as to the rule established in Hedley Byrne and Co Ltd v Heller and Partners Ltd [1964] AC 465 that, irrespective of contract, if someone possessed of a special skill undertakes to apply that skill for the assistance of another person who relies upon such a skill, a duty of care will arise. If the advice given in exercising that duty is such that no reasonable professional competent in the field and acting reasonably should give, then there may be a claim in negligence as the skilled person clearly owes a duty of care to the client '“ as well as to the court.

The leading recent case on experts' immunity from suit is Stanton v Callaghan [1998] EWCA Civ 1176. The plaintiff consulted a surveyor, Mr Callaghan, about subsidence damage to his home for a claim against his insurers. The surveyor reported that the house needed total underpinning. The surveyor later attended a meeting with the insurer's expert, at which it was agreed that there was an alternative, cheaper solution '“ the insurers refused to pay for total underpinning as they considered that this would amount to 'betterment'. The insurers paid the lower sum into court, which the plaintiff accepted. The plaintiff sold the house and sued his solicitor and the surveyor for the difference between the sale price and the value of the house if it had been underpinned, as the surveyor had originally proposed. At first instance, the deputy High Court judge declined to strike out the statement of claim against the surveyor, on the ground that the immunity might not extend to negligence that consisted of taking into account 'extraneous matters', i.e. the insurer's position.

The Court of Appeal struck out the claim, concluding that the surveyor was immune because: a) he was doing what he was instructed to do, so the main allegations could not amount to a breach of contract or negligence; b) his report and attendance at the experts' meeting attracted immunity because it was in the interests of the administration of justice that expert witnesses should meet; and c) experts should be free to make proper concessions and 'to resile fearlessly and with dignity', so that trials should take no longer than is necessary to achieve justice in the particular case.

Developing the law on immunity

In very detailed judgments, the Court of Appeal considered the development of the law on witness immunity. With regard to experts, they concluded that the immunity extends to: a) anything that the expert says in evidence at trial; and b) the contents of the report, which he adopts as, or incorporates into, his oral evidence.

On the other hand, it was decided 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, 'notwithstanding that it [the litigation] was in contemplation at the time when the advice was given and that the expert would be a witness at the trial if that litigation were to proceed'.

Otton LJ said: 'Immunity for pre-trial work is not indiscriminate. Not all work done prior to a hearing will be covered. It is a tailored immunity and whether or not immunity exists in respect of pre-hearing conduct rests on an assessment of whether the work in question is so intimately connected with the conduct of the case in court that it can fairly be said to be a preliminary decision affecting the way the cause is to be conducted when it comes to a hearing.'

Simon Tuckey QC (as he then was), sitting as a deputy High Court judge, drew the lines similarly in the earlier case of Palmer v Durnford Ford [1992] 1 QB 483 (referred to with approval by the Court of Appeal in Stanton). The expert was an engineer who was retained by a firm of haulage contractors to prepare a report on the cause of the breakdown of a new lorry following an attempted repair. The engineer assured the plaintiff's solicitors that he had the necessary qualifications and experience. The engineer advised bringing actions against both the vendors and the repairers of the lorry. The plaintiff followed the advice. The engineer changed his mind about the claim against the vendors after disclosure of their expert's report.

Eventually, the entire claim was abandoned at trial, after the engineer had given evidence and, by consent, judgment was given for the two defendants, with costs. The plaintiffs sued their solicitors and the engineer for breaches of their contractual duties of care. The engineer claimed immunity. Tuckey allowed the claims in negligence in respect of the engineer's assurances to the client about his expertise, and his pre-action advice to proceed. Tuckey said that the principal purpose for which the work was done was the key to whether the immunity was engaged: 'The immunity would only extend to what could fairly be said to be preliminary to his giving evidence in court judged perhaps by the principal purpose for which the work was done. So the production or approval of a report for the purposes of disclosure to the other side would be immune but work done for the principal purpose of advising the client would not. Each case would depend upon its own facts with the court concerned to protect the expert from liability for the evidence which he gave in court and the work principally and proximately leading thereto.'

In Raiss v Paimano [2001] PNLR 21, the claimant brought an action against a surveyor, Mr Paimano, for wasted costs and losses allegedly caused by the surveyor's negligent advice when acting as an expert witness in proceedings against a firm of surveyors. Mr Paimano told the claimant that he was on the Panel of Arbitrators to the Royal Institute of Chartered Surveyors and that he had considerable knowledge and experience of open market property transactions in the Covent Garden area.

He also advised that the claimant had a good claim against the surveyors. The surveyor's claims about his expertise were repeated in his report for the court; under cross-examination it became apparent that neither statement was true.

At first instance in the subsequent proceedings against the surveyor, the High Court Master drew a distinction between the statements about the surveyor's experience, and the deceit that he was on the RICS Panel, striking out the first from the particulars of claim but allowing the second to stand. However, on appeal, Eady J struck out both heads of claim as he considered that the immunity applied even to dishonest evidence, based on the authorities including Stanton.

The end of protection for witnesses?

In the future, courts may decide that the public policy arguments in favour of expert witness immunity for their court-related work are outweighed by arguments against it. Certainly, it is arguable whether experts' immunity is consistent with article 6 of the European Convention on Human Rights enshrining the right to a fair trial, particularly in a circumstance when there was no other redress for a client seriously disadvantaged by the actions or inactions of an expert.

Commentators have also suggested that the jurisprudential basis for expert witness immunity has been substantially undermined by the decision in the Hall case.

Even if the courts were persuaded to remove or restrict the immunity, it could still be very difficult to prove that a party's losses were attributable to an expert witness' actions when there had been a trial, because, while expert evidence informs and assists a judge, he/she has to make up their own mind based on all the evidence.

For now, therefore, courts attach immunity to an expert witness' oral evidence and report for the proceedings, or to other work 'principally and proximately', leading to the giving of evidence in court. This is likely to include the expert answering written questions on their report under CPR 35.6, and work for, at and following an experts' discussion under CPR 35.12. Excluded from the immunity are advice pre-proceedings, and possibly advisory work during the litigation by 'shadow experts' who are not preparing reports for disclosure and who will not give evidence at trial.

Yet grey areas remain; for instance, advice or a report from an expert pre-action, possibly when the parties are following a pre-action protocol procedure, when the same expert was retained subsequently for the proceedings; or advisory work by an expert who was initially instructed as a shadow expert, but who was then retained with the permission of the court, to prepare a report for disclosure and, if necessary, for trial.

However, Jones may change the current immunity. The judge, Honourable Mr Justice Blake, in this case stated that ''¦although I conclude that it remains good law, I have doubts as to whether [Stanton v Callaghan] will continue to remain so... I conclude that there is a substantial likelihood that on re-examination by a superior court, with the power to do so, it will emerge that the public policy justification for the rule can not support it'¦ Mr Ter Haar QC for the claimant made the primary submission that Stanton v Callaghan was no longer binding law for two reasons. First, the reasons given by the Court of Appeal for applying the principle of absolute immunity to expert witnesses retained by a party in litigation relied substantially on the advocate immunity principle as then articulated in the cases of Rondel v Worsley [1969] 1AC'¦ Those decisions have been subsequently overturned by the Appellate Committee of the House of Lords in the case of Arthur J S Hall v Simons [2002] 1AC 615, and reliance on their reasoning and policy was undermined.'

So, the immunity of expert witnesses is being questioned, but, until Jones is decided in the Court of Appeal, expert witnesses cannot be held liable.

Roger Ter Haar will be speaking at the Bond Solon Expert Witness Conference on 12 November, by which time we may have a decision.