Experts need court skills as well as technical expertise

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 of an advocate, and also when they should not accept instructions due to conflicts of interest;

• Be able to write an expert report that is clear, balanced, comprehensive, and logical, and which meets the needs of the court as well
  as the client; and

• Be able to give lucid evidence-in-chief, conscious of their obligations to the court as well as their client, and to be able to withstand the pressures of cross-examination, knowing when it is proper to make concessions. Expert witnesses are increasingly also needed to make a sensible contribution when giving contemporaneous evidence with the expert from the other side (or 'hot tubbing', as it is often called).

The areas of principle which RICS sees as causing the most challenges are expert witnesses' understanding of the nature of their primary duty to the court and the associated distinction between being an expert and being an advocate. The most challenging areas of practice relate to writing expert reports, giving evidence, and coping under cross-examination.

Duty to the court

The past 20 years have seen professional bodies develop ever more sophisticated and stringent codes of conduct and ethical rules which set out the duty of the expert witness to the court or tribunal. This evolution started in the UK in 1993 with the seminal 'Ikarian Reefer' case (National Justice Compania Naviera Sa v Prudential Assurance Co Ltd [1993] 2 Lloyd's Rep 68), which established the principle that the expert witness's duty to the court overrides any duty to the client. Mr Justice Cresswell held:

• Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced by the exigencies of litigation;

• An expert witness should provide independent assistance to the court by way of objective and unbiased opinion to matters within their expertise;

• An expert witness should never assume the role of an advocate;

• An expert witness should not omit to consider material facts that could detract from their concluded opinion;

• An expert witness should make it clear when a particular question or issue falls outside their expertise; and

• If, after the exchange of reports, an expert changes their view on a material matter, having read the other side's report or for any other reason, such change of view should be communicated to the other side without delay and, when appropriate, to the court.

Advocates and experts

The roles of advocate and expert witness are very different, requiring distinct skills, and cannot normally be carried out by the same person. However, in certain circumstances some tribunals, usually lower order tribunals, do allow experts to act in the same case both as advocate and as expert witness where it is in the public interest, and where not allowing such a dual role would limit access to justice by certain parties.

RICS practice statement (PS) 9.1 provides that
a member may only act in a dual role as advocate and as expert witness where neither the rules nor the customs of the particular tribunal prohibit them from so acting, and other relevant factors make it appropriate (e.g. the disproportionality
of retaining two persons in separate roles).

PS 9.2 then provides that should they intend, or be invited, to act in a dual role as advocate and as expert witness, they must consider both whether it is permissible to do so and also whether it is appropriate. They should promptly communicate to their client the results of such considerations, setting out in writing the likely advantages and disadvantages of acting in a dual role in the particular circumstances of the case, so as to enable the client to decide whether they should indeed do so. In such communication the expert must detail:

• The possible impact on their impartiality as expert witness, any possible impact in terms of the perception of that impartiality by others, and any possible impact on their advocacy submissions;

• Whether or not they will be able to fulfil both roles properly at all times; and

• Whether or not it would be disproportionate in all the circumstances, or otherwise in the client's best interests, for a separate person to be retained to undertake one of the roles.

Having complied with the above, they may only act in both roles if the client instructs them so to act. Where they confirm instructions to act in a dual role, the expert must clearly distinguish between those two roles at all times, whether in oral hearings or in written presentations.

An expert acting as an advocate is bound to act in the best interests of their client, and is absolutely entitled to be partial. In such circumstances, the duty owed by the expert falls some way short of the overriding duty generally owed by an expert witness. Nonetheless, as is the case with a legal practitioner, a duty is owed to the tribunal (usually an arbitrator) to act properly and fairly, and the tribunal should not be misled in any manner. SJ

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