Abstract
For most expert witnesses, the decidedly disturbing decision-making of the Supreme Court in Jones v Kaney (2011) UKSC 13, has little immediate impact as, being conscientious professionals, they will be unlikely to be found negligent and will carry professional indemnity insurance just in case. Indeed, they will view existing professional disciplinary risks as a greater concern! But there are a number of potential consequences of this disturbing decision that should be considered by all expert witnesses and some clear actions that may be necessary. These include including obtain appropriate professional indemnity insurance, considering the potential for limiting liability through contract, becoming more circumspect about the way they express their opinions and consider whether accepting single joint expert instructions is still an option.
A meeting of the Society was held at the Medical Society of London, 11 Chandos Street, Cavendish Square, London, W1G 9EB, UK on Thursday, 10 January 2013. The President, Dr Martin Mansell, was in the Chair.
So what was expert witness immunity? Expert witness immunity wasn’t something put in place especially to protect expert witnesses. It was, rather, believed to be part of a wider immunity given to all witnesses in legal proceedings. Witness immunity protects against claims for damages arising out of anything that the witness says or does in the court. It is a protection put in place not through statute but through case law as a matter of public policy.
It comes as a surprise to many that the public policy justification for this immunity is not to protect the witnesses!
No, the public policy justification is that the immunity exists to protect the public by encouraging witnesses to express themselves freely in courts. This was given classic expression by Lord Justice Salmon in 1963, who said: “This immunity exists for the benefit of the public, since the administration of justice would be greatly impeded if witnesses were to be in fear that any disgruntled and possibly impecunious persons against whom they gave evidence might subsequently involve them in costly litigation.” (Salmon LJ in Marrinan v Vibart [1963])
What the decision in Jones v Kaney does is remove expert witnesses from the scope of the immunity where the claim for damages lies in a breach of contract or in the tort of negligence. This decision certainly applies in England and Wales, it very likely applies in Northern Ireland, but it isn’t clear to me that it applies in Scotland.
As I have said, the concept of witness immunity is not statute based but has its origins in case law.
The leading modern case as far as expert witness immunity was concerned is Stanton v Callaghan, which began back in 1998. This was a case in which an engineer changed his opinion following the meeting of experts. This greatly reduced the quantum in the claim. He was sued for damages by his instructing party and, eventually, in the Court of Appeal his immunity to such a claim was confirmed.
Now, it wasn’t just experts who had immunity. At that time advocates had immunity as well.
In the case of Hall v Simons we saw the House of Lords abolish advocates’ immunity. However, the Court of Appeal made it explicitly clear that that judgment (Hall v Simons) didn’t impact at all on witness immunity. That was expressly unchanged by Hall v Simons.
Four years later the case of Phillips v Symes was an important one, in that it made clear that whilst you couldn’t sue a negligent expert for damages, you could in extremis recover some of your court costs from him. In that case the expert had to pay £400,000 of court costs! But, don’t panic, this sort of action will only happen when the expert witness has acted in (and I quote) “flagrant, reckless disregard of his duties to the court.” So nobody here is going to get into that situation.
So adverse costs orders are one way around immunity, but there has always been another way to outflank immunity, and that is through professional regulators.
Few here will be unaware of the sorry story of Professor Sir Roy Meadow who was struck off by the GMC Fitness to Practise panel, but pending its implementation (so in fact he never was actually struck off) Meadow appealed their decision. When Mr Justice Collins over-turned the GMC ruling, referring to the decision making of the GMC as “verging on the irrational”, he took on the matter of litigants being able to outflank immunity by getting professional regulators, especially perhaps irrational ones, to vex expert witnesses. Sadly, at the Court of Appeal, Collins’ wonderfully simple scheme was rejected. Thus, expert witnesses, whilst then still immune to damages claims, were open to professional disciplinary actions in respect of their forensic work.
After a decade of attacks, in January 2010 Mr Justice Blake delivered a judgment in the High Court that was ultimately to sweep away expert witness immunity. In Paul Wynne Jones v Sue Kaney Mr Justice Blake considered whether a negligence claim against an expert witness should be struck out summarily on the basis of the Stanton decision.
The background facts were the claimant had sought damages for personal injuries sustained in a traffic accident. There was disagreement as to whether he was suffering from post-traumatic stress disorder (PTSD) or whether the symptoms had been exaggerated. The claimant’s solicitors instructed Sue Kaney, a Consultant Clinical Psychologist, to advise on the psychological aspects of the claim. In her initial report Sue Kaney suggested that the claimant was indeed suffering from PTSD. However, she underwent something of a reversal of opinion when, following a telephone conference between herself and the expert on the other side, she signed a joint statement that effectively said she had found the claimant to just be “deceptive and deceitful” and considered his psychological reaction to the accident did not amount to PTSD. The claimants were clearly a bit concerned by that change of heart and requested to the court that they be allowed to instruct a new expert witness, on the basis that they had lost confidence in Kaney. That application was rejected by the court and the action was therefore settled for considerably less than might otherwise have been the case.
This case is very similar to Stanton, because in both cases the expert’s opinion changed following the meeting of experts.
Mr Jones commenced negligence proceedings against Kaney seeking damages. Kaney entered no defence on the merits but instead pleaded immunity under the principle of Stanton. She applied for a summary judgment striking out the proceedings.
Mr Justice Blake held that Stanton was indeed binding upon him and it was binding upon the Court of Appeal. He didn’t like the fact that it was binding, so he granted the claimants what is called a “leapfrog certificate”, which allows them to apply direct to the Supreme Court; missing out all the intervening steps, to take the question directly to the Supreme Court.
The appeal (which is Jones v Kaney [2011] UK Supreme Court 13) was heard over two days in early January 2011, but we had to wait until the end of March 2011 to get the decision. That is quite a long gap, I have to say, and we found out why that happened, because when it came out in March 2011 the decision was a split one, with a majority of five judges (Lords Phillips, Brown, Collins, Kerr and Dyson) favouring the removal of expert witness immunity and two judges (Lord Hope and Lady Hale) dissenting.
I will look at three aspects of this decision:
the decision-making process itself; some possible consequences of the decision; and what expert witnesses need to consider in light of the decision.
I found the decision disturbing for the lack of challenge from the majority of the views expressed by the minority. It is usual in split decisions for the lead judge to address the concerns that have been expressed by the dissenting minority. This was not done in this case. But, leaving that to one side, the most troubling aspect of all is the way in which the majority arrived at its decision.
As Lord Hope put it: “The lack of a secure principled basis for removing the immunity from expert witnesses, the lack of a clear dividing line between what is to be affected by the removal and what is not, the uncertainties that this would cause and the lack of reliable evidence to indicate what the effects might be suggest that the wiser course would be to leave matters as they stand.”
So what led the court to make this decision? One element may be the rather anachronistic view of expert witnesses revealed by the President of the Supreme Court (Lord Phillips). But there are others, including whose client is whose, what I’ll call “fuzziness at the edges” and the conflation of duties.
Let’s turn first to the anachronistic view of expert witness practice.
Lord Phillips’ judgment is notable for his pre-Woolf characterisation of the conduct of expert witnesses. I consider that he views expert witnesses as partisan creatures of those who instruct them, almost as if the Civil Procedure Rules had never been written.
When he says “an expert’s initial advice is likely to be for the benefit of his client alone” he is not describing an expert witness; he is describing an expert advisor. Expert advisors have never had the protection of witness immunity. No expert witness instructed under CPR 35 could, I suggest, ever write a report that was “for the benefit of his client alone.” To say “the expert witness must give his evidence honestly, even if this involves concessions that are contrary to his client’s interests” seems to portray experts as being bound in loyalty to the party paying them and only reluctantly observing their duty to the court. This simply is not a description of expert witnesses that I recognise in 2013 – or, indeed, in 2011.
It feels as if Lord Phillips thinks the world of the hired gun is alive and well 10 years after Lord Woolf rode them out of town.
Another matter raised by Lord Phillips’ words is the matter of whose client is whose.
In the world of the expert witness under the Civil Procedure Rules I suspect that very few expert witnesses view the solicitor’s client as being the expert’s client as well. The Supreme Court’s repeated assertion that the party whose solicitor instructs the expert is the expert’s client is very revealing and, in my view, completely wrong. To an expert instructed under the CPR there can be only one “client”, and that is going to be the court. It should matter not one jot if the expert is instructed by the claimant or the defendant. His duty to independence and objectivity would result, given the same instructions (being the caveat), in the same opinion; an opinion, as it was once famously put, “uninfluenced as to its form or content by the exigencies of litigation.”
It may well be that the time has long passed when expert witnesses should stop talking about “sides” in litigation. An expert should not think of being on one side or the other side. They should not speak of the other side’s expert. I know it is just a matter of language, but I think it would be helpful if the way the expert witnesses talk about the parties helped to reinforce the proper separation, and the expert’s independence from those parties, which should exist.
Now, let’s have a look at another kind of fuzziness.
One complaint made by the majority in the Supreme Court was that the boundary of immunity was fuzzy. Presumably then the majority judges would be very keen to ensure that the new position created by their decision would give a more clear-cut demarcation. But, as Lady Hale shows, having removed immunity the borders are still fuzzy: “The different ways in which Lord Phillips, Lord Brown and Lord Dyson describe the extent to which the immunity is to be removed suggest that the boundaries are, and are likely to remain, unclear.” “If it is necessary to give the protection against some claims to enable witnesses to speak freely, why should it not be given to them all? Why should a claim for a breach of duty be treated differently from a claim for defamation? If the claim is well founded, a wrong was done in either case which ought to be remedied.”
Much is made in the Supreme Court judgment of the duty an expert witness owes to the court, the duty he owes to those who instruct him and how these are incapable of being in conflict. Is it just me, or does the fact that the Civil Procedure Rules places an “overriding” duty on the expert witness imply that on occasion these duties will conflict, and that in such cases the duty to the client is subordinate?
Lord Phillips says: “It is paradoxical to postulate that in order to persuade an expert to perform the duty that he has undertaken to his client it is necessary to give him immunity from liability for breach of that duty.”
Whilst Lord Phillips can see no possible conflict, Lord Hope is firm in his opinion that there is “… an obvious conflict between the duties that the expert owes to his client and those that, in the public interest, he owes to the court.” “… when it comes to the content of that evidence [the expert’s] overriding duty is to the court, not to the party for whom he appears. His duty is to give his own unbiased opinion on matters within his expertise.”
Leaving how the decision was made, what are the possible consequences?
The majority in the Supreme Court is dismissive of the risk that their decision will have a “chilling effect” on the supply of willing experts; that is, it will be harder to find expert witnesses. But opening expert witnesses to the potential distractions of vexatious suits from disgruntled litigants is never likely to encourage involvement in forensic work. It is the unquantifiable nature of this risk that so concerned Lord Hope and Lady Hale, as it should trouble anybody interested in the proper administration of justice.
For all the effort put into drawing an analogy between expert witnesses and advocates, and into seeking to learn from the experience of the removal of advocate immunity a decade ago, the majority in the Supreme Court completely ignored the fundamental difference between these two players. Experts have busy professional lives away from the legal system and can readily choose not to take on forensic work, but advocates have no such easy choices.
Lord Phillips asks: “Why should the risk of being sued in relation to forensic services constitute a greater disincentive to the provision of such services than does the risk of being sued in relation to any other form of professional service?”
The experience of advocates is no guide, because a failed litigant will always be more wary of suing a lawyer than he or she will be of suing an expert. Disgruntled litigants may pursue their expert witness on the basis that, the expert being unaccustomed to such attacks, he or she may well view the onslaught with sufficient distaste to settle it quickly.
We shall have to wait and see whether this, as Lady Hale put it, “experimental” decision is as benign on the supply of expert witnesses as their Lordships suppose, especially in the light of the ever more stringent caps on fees coming out of the likes of the Legal Services Commission. But the supply side issues are only one concern.
Another unfortunate consequence of this decision lies in the impetus it gives to the further development of what I call a “professional” class of expert witness. With a few notable exceptions, such as forensic science and forensic accountancy, the vast majority of expert witnesses come to litigation from a busy professional practice. By restricting the scope of an expert to offer just occasional assistance to the court this decision will concentrate instructions upon those experts who have made a commercial decision to build a forensic practice. This is a double-edged sword. Whilst the greater understanding of their role and duties should ensure the “professional” expert witness will create fewer procedural problems, by excluding the occasional expert witness the freshness and challenge to dogma which comes with diversity may well be lost.
The majority set the issue before them in the context of what to do with a negligent expert witness. In my view, this was a myopic view of witness immunity. In putting a single expert witness centre stage, it strongly encouraged the creation of a remedy for a wrong done. But witness immunity has never been about protecting the negligent but about protecting the public. In focusing so intently on what to do about the rare example of an expert witness who has been negligent, the Supreme Court has handed down a decision that threatens the very foundation of the broader witness immunity.
There have always been exceptions to the immunity rule: perjury and contempt have a long lineage; wasted costs orders and professional disciplinary actions that we have spoken about. As Lady Hale pointed out, all those exceptions are there to oblige the witness to perform his duty to the court. But the Supreme Court decision in this case is a radical departure – it has been made to protect the interests of the client. To do this on no “secure principled basis” is all the more troubling.
So, bearing all this in mind, how does the loss of immunity play out in practice?
In Kaney Lord Phillips said: “I doubt whether removal of expert witness immunity will lead to a proliferation of vexatious claims. I am not aware that since Hall v Simons barristers have experienced a flood of such claims from disappointed litigants.”
The first case I will talk about is Warner v Penningtons. This was an appeal case arising in the context of a professional negligence claim brought by Mr Warner against Penningtons, the firm of solicitors who had represented him at the time of settlement of a personal injury claim. Warner alleges that his claim was settled at too low a level as a result of negligent advice by Penningtons Solicitors.
Mr Warner suffered a severe head injury whilst at work back in 1993 when he was struck by a heavy plank. He instructed a solicitor to bring a claim. Liability to compensate him was soon admitted on behalf of the employer. The medical evidence showed that Mr Warner had made a remarkably good physical recovery from his injuries but he was left with residual changes of personality and loss of executive function. Although within about three years of the accident he was managing to live alone in a flat in London, he was not coping well and it was thought that some professional support might be required in the long term. Accordingly, in 1997 an expert witness report was prepared assessing and costing Mr Warner’s care needs, past, present and future.
Based upon reviewing the bundle of medical reports, some witness statements and consultations with Mr Warner and his main care giver, the expert witness wrote her report in March 1998. There is no criticism of the thoroughness of the report’s preparation or the expert’s general competence or care. On receipt of the report the solicitor was plainly delighted. He wrote to thank the expert in glowing terms. He said that the report was admirable and explained the care needs very clearly. So nice to have a happy solicitor!
In May 1999 an experts’ meeting was convened the day before the hearing – never a good idea, that one – and a joint schedule of figures was prepared, some of which the experts agreed, some of which they did not agree. Both experts noted in the statement, however, that it had been some time since they had seen Mr Warner and so they had relied upon their earlier assessments. At the court door the claim was settled for £425,000.
Subsequently, it was alleged that the settlement had undervalued the claim by more than £1 million, the major portion of which was due to the undervaluation of Mr Warner’s care needs. A claim was begun against Penningtons, the original solicitors.
The care expert who had written the report was approached by Mr Warner’s new legal team and was shown various medical reports and witness statements which she had not seen at the time. She gave a witness statement saying that her assessment would have been higher if she had seen these assessments and pointed out a passage in her original report where she advised that a care regime should be established “as a matter of priority.” She had recommended that this should comprise regular cleaning help, a support worker and a case manager. She had in mind that establishing a care regime immediately would reveal Mr Warner’s true requirements much more accurately than her theoretical assessment could achieve.
In their defence Penningtons, the solicitors, denied negligence and denied the claim had been settled for too little, but, as is done in these cases, if it had been undersettled, it was due to the expert’s negligence in failing to advise that a support worker and case manager should be employed prior to the trial.
The expert responded to this by saying this advice had indeed been given in her report in the following words: “Mr Warner’s quality of life will have reduced without regular support, and funds should be made available as a matter of priority to ensure that a new care regime can be established.”
For Penningtons it was argued that the words were not such as to convey to the reader that the expert was advising that the care regime should be set up immediately. Any reasonable solicitor, they said, would have understood the words to mean only that a care regime would be set up after the trial or settlement.
An application was made to have the claim against the expert struck out on the ground that she was immune. Are you spotting Kaney coming in? That issue was stayed pending the decision in Kaney, because we are actually a bit before the Kaney decision. So, in the alternative, summary judgment was sought on the grounds that Penningtons had no prospect of showing that the expert had been negligent.
The application for summary judgment came before the court in July 2010 and summary judgment was given in favour of the expert. Penningtons appealed that decision to the Court of Appeal, where everything turned on the meaning of the words that had been used by the expert.
At the Court of Appeal Penningtons argued that the matter should go to trial because the true meaning of the contentious words could only be revealed in context, and that context required the hearing of evidence. It was asserted that the solicitor and the barrister concerned had not understood the text to mean that the care regime should be set up ahead of trial but that one should be set up after the trial.
Lady Justice Smith said that the question to be addressed was: what would a reasonable solicitor have understood from the words used by the expert? This must be decided objectively by the judge and, crucially, it matters not how the solicitor and barrister understood it at the time. In the words of Lady Justice Smith: “… the question of meaning is to be determined objectively and not by reference to the subjective opinions of those who read it at the time.”
The reason for going on about that case so much is that this is a case in which, because of Kaney, the expert had to put forward a detailed defence rather than being able to rely on immunity to deflect the action. It also, helpfully, reminds us that the test for what particular words mean in your reports is not based on the subjective impressions of the lawyers who read it at the time, but on a cold, hard, objective analysis by a judge, and I think we should all be grateful for that.
Let’s turn now to the case of the forgetful surveyor. Now, I know this is just a little bit out of your own disciplines here, but this is a very interesting case.
Ridgeland Properties v Bristol City Council was an appeal against the decision of the Lands Tribunal determining the compensation payable for the compulsory purchase of a tower block in Bristol in the sum of £4.5m.
The single ground of appeal was that the tribunal wrongly refused Ridgeland Properties’ application, made following publication of the tribunal’s draft decision, to re-open the hearing to permit further evidence to be given of three letters making offers for the property.
The brief facts were that Tollgate House, a 19-storey office building, built in 1976 on the north-east of Bristol City centre, was acquired by Ridgeland Properties in 1999 with the intention of converting it into flats. It was then included in Bristol City Council’s Broadmead Expansion Compulsory Purchase Order 2003 and, after various legal skirmishes, Bristol City Council took possession on 13 September 2005 and demolished it. Therefore, Ridgeland Properties could claim some compensation.
The parties were unable to agree the amount of compensation payable (no surprise there) and Bristol City Council lodged what is called a Notice of Reference with the Lands Tribunal to come up with a valuation. Because there was no equivalent property sale available to permit what is called a “comparison valuation”, it was agreed that the valuation would have to be done on what is called the “residual basis”, which is a complex, multifactorial approach to determining a value. Using this approach, Ridgeland’s expert put the value at between £15m and £23m, whereas Bristol City Council’s expert put the value at zero, or maybe £2.5m. On 3 June 2009 the tribunal issued its immensely detailed draft decision, running to 90 pages, which valued the property at £4.5m.
It is fair to say that the two sides to the dispute had not got along well. Commenting on the inefficiency this caused, the tribunal said: “… we were not helped in our task by the seeming inability of the parties to agree upon a common approach to some aspects of the costing and valuation processes … On future occasions we would hope that the respective experts of all disciplines in a reference such as this will be able to agree upon a larger number of variables at an earlier stage without, as here, pursuing an attritional battle of details which descended to the farcical level of the council specifying the cost of … shaver sockets on a scheme costing over £40m.”
The detailed statement that Ridgeland’s new solicitors put to the tribunal set out the following points.
There was, in fact, valuable comparative evidence of the property’s value through three offers made during 2002/03. One was an offer for £19.5m, another for £23m and a final one for £20m. These letters were sent to a director of Ridgeland’s parent company. Ridgeland’s surveyor, and valuation expert witness, had seen these offer letters. Ridgeland’s original legal firm had seen these offer letters.
Naturally, the new solicitors asked why no-one had brought these letters to the attention of the tribunal, and their enquiries revealed that:
the barristers had never heard of them; the solicitors weren’t prepared to answer; and the expert was aware of the offers but had forgotten them in preparing his evidence!
However, because the offers had been part of the evidence produced to resist the original compulsory purchase order (those skirmishes I mentioned), Bristol City Council and its expert also knew about these letters.
Finally, of course, Ridgeland Properties knew of the offers but, according to its parent company, the matter had been left in the hands of its solicitor, or his firm, and the first the parent company knew of the detail was, apparently, when the £4.5 m decision came out of the tribunal.
Now, the tribunal has discretion to admit new evidence, as do all courts. Ridgeland submitted that there were a number of considerations that came into play, some arguing for admitting the new evidence and some arguing against it. Against Ridgeland they said was:
the fact the letters had been known to them throughout and so, to paraphrase Lord Denning, the evidence could have been obtained with reasonable diligence for use at the hearing; and the fact that there would be additional time and costs for a new hearing.
But in favour of admitting the new evidence was, they argued:
the cardinal importance of this new evidence; the fact that Bristol City Council knew about this evidence; that Stanton v Callaghan would prevent Ridgeland seeking redress through a negligence action against the expert (which is why you are listening to me talking about this one); the inherently unfair nature of compulsory purchase, which argues for a more flexible approach in order to balance the public interest in the land and the landowner’s rights; the fact that it was a local authority paying the compensation; that Ridgeland accepted it would pay the costs of the resumed hearing; and “the sense of injustice and absence of fair play now [being] felt” by Ridgeland.
The tribunal wasn’t persuaded.
Having failed to get the tribunal to admit the offer letters, and, in effect, change the whole basis of the valuation from a residual to a comparative one, Ridgeland went to the Court of Appeal. In granting permission to appeal, Lord Justice Sullivan said that it was arguable that in a compulsory purchase case, where the local authority had a duty to pay the correct (not the lowest) compensation, knowing of the offer letters the local authority should have drawn them to the attention of the tribunal. Bristol City Council could then have argued why they didn’t change the valuation.
The Court of Appeal made it clear that the only ground for overturning the tribunal decision was that the tribunal had wrongly refused to admit the offer letters. Much of the court’s reasoning is founded on an analysis of whether, in the particular circumstances of a compulsory purchase case and a party who, leaving the conduct of the case entirely up to the legal and expert team, simply “forgets” about a crucial piece of evidence, deserves a relaxation of Lord Denning’s approach to the late admission of evidence. It concluded that it didn’t, and crucial to that decision was Jones v Kaney. The court said: “In Jones v Kaney the Supreme Court overruled Stanton v Callaghan and decided that the immunity from suit for breach of duty enjoyed by expert witnesses in relation to their participation in legal proceedings should be abolished. In our judgment, the ability of the Appellant to obtain redress from [the expert] and/or [the solicitors], if its explanation for the failure to refer to the three offers is correct, is a powerful reason, which the tribunal was not able to take into account, for not permitting the Appellant to mount an entirely new valuation case before the tribunal.”
Interestingly, this “failure to disclose” is rather similar to the action of Dr Williams in the Sally Clark case, and he was roundly pilloried for his failure to mention what was in his opinion a false positive medical test. It is also interesting to observe that Ridgeland’s expert is criticised here for failing to mention evidence he was not given as part of his instructions. Remember the solicitors had forgotten about them as well. Perhaps the solicitors will have an easier target if they go after the original solicitors rather than the expert.
So, there we are, not six months after Jones v Kaney, we had two decisions that rested upon it. In Warner the expert witness immunity argument was removed, so requiring a proper defence to be mounted, and in Ridgeland the court cited the loss of expert witness immunity as a critical factor in its decision to refuse to overturn the Lands tribunal’s decision. “Go and sue the expert” they said.
But there are also more mundane changes in the behaviour of lawyers. By way of example, (something I have just pulled from our helpline), we have the case of “the ghostly letter of instruction.” This was a bizarre situation reported on the UK Register of Expert Witnesses helpline. Our member received by email some instructions from a law firm. The instructions involved investigating a company’s finances and preparing a report. The expert did what was asked of him and issued the final report along with his invoice.
Four months later, despite reminders, telephone calls and a final demand, the invoice remained unpaid. The expert then instructed debt collection lawyers to recover the debt. The solicitors firm tried to wriggle out of the matter by claiming that its client, rather than itself, was responsible for the expert’s fee. The client, the company whose finances the expert had been asked to report on, was, of course, in liquidation by then.
When the expert’s debt chasing lawyers pursued the debt, the original solicitors firm issued a copy of a letter of instruction that it claimed had been sent to the expert on the day the instructions had been emailed to him. It detailed a large number of instructions, together with a statement that the client would be liable for the fee.
The expert has never seen this letter and its timing and content are completely at odds with a lot of the other documentary correspondence in the matter. Is it a work of fiction? Nevertheless, the solicitors firm is now suing the expert for professional negligence for failing to comply fully with these instructions and has refused to pay the fee note.
One wonders if the Supreme Court had this sort of vexatious nonsense in mind when it said that there would be little impact from their decision in Jones v Kaney.
I think the lesson to take out of that, by the way, is that before you start working ensure you have clear and cogent written instructions in your possession. Not only is that a requirement of the Civil Procedure Rules, it would also stop dead any attempt to fabricate instructions at a later date.
So, regardless of how the decision was made, what its consequences are and whether it is a correct decision, there are now a number of issues that should be at the top of any expert’s “to do” list.
But first, and most important, is that expert witnesses should obtain appropriate professional indemnity insurance to cover their forensic work, or check with their existing professional indemnity insurer to see if it will provide cover that extends to forensic work.
However, one thing that you have to be aware of is the fact that a court decision sets out what the relevant law is and was. I think it likely that the courts would say immunity was lost at the moment Kaney signed the joint statement back in 2005. So, in theory at least, disgruntled litigants from three years ago could now start trying to have a go at experts. So, without getting maters out of perspective, experts should check that their professional indemnity insurer will cover this retrospective risk.
There are some leaflets on the chairs out there that talk about a service that we put together for experts listed in the Register. We used the buying power of the hundreds and hundreds of experts that we deal with to negotiate a bespoke insurance scheme. This scheme, for example, provides £1m worth of cover for £180 a year and it covers an expert witness for all the expert witness work he or she has ever done.
When working up the details of this group policy I thought that the vast majority of medical expert witnesses wouldn’t be interested because their existing indemnity provider, MDU, MPS, etc., would be able to offer a cheap add-on to cover the risk. However, I am now reliably informed that there is nothing cheap about it and we have had plenty of interest from medical experts.
Next we have the potential for limiting liability through contract. So you put a clause in your contract to cap your liability.
Lord Collins said: “There is no basis for suggesting that experts will be discouraged from testifying if immunity [is lost] – most are professional people who are insured or can obtain insurance readily, and those who are not insured can limit their liability by contract.”
Now, it may be that where there is a limited supply of experts, particularly, say, in the family arena, limitation of liability clauses may be more likely to be successful and acceptable by a party struggling to find an expert to instruct in the first place. In those circumstances, the clause may be more likely to be upheld by the court. But it is not the sort of panacea suggested by Lord Collins, that is for sure.
Any such contractual clause should probably be tied into the level of indemnity available as well. In effect, whilst negotiating the contract, if the expert sets out that the level of indemnity he or she brings with them is X it gives the other side the opportunity to decide if that is enough cover for them. If they are happy to enter into a contract with that level of liability, then it may be that the court would be more willing to enforce any associated liability clause.
Okay, then let’s turn now to the matter of circumspection.
The Supreme Court heard arguments that the purpose of immunity was to protect the ready supply of expert witnesses and to give them the confidence to give their full and frank opinions. I would add to these that the immunity was a strong support for an expert’s independence, as required under CPR and the other procedure rules.
It also, though, made it easier for an expert to resile from an earlier held position, which is what happened in Stanton and in Jones v Kaney. Without the protection of immunity expert witnesses may well become more circumspect in their opinions. As Lord Brown puts it: “… the most likely broad consequence of denying expert witnesses the immunity accorded to them … will be a sharpened awareness of the risks of pitching their initial views of the merits of their client’s case … ” – there we go again – “ … too high or too inflexibly lest these views come to expose and embarrass them at a later date.”
However, it is entirely unsurprising to me that we are now seeing judges expressing frustration at expert witnesses not coming to agreed positions early on in proceedings. A case you should all set aside a wet afternoon to read is Trebor Bassett v ADT Fire, if only to read the context for the following piece of judicial ire: “Bluntly, I have to say that experts appointed in civil litigation have no business to ‘fall out’ and to fail to comply with the orders of the court.”
But as in another case, Mueller Europe Ltd v Central Roofing, the behaviour that is exercising the judiciary is the seeming inability of expert witnesses to have productive CPR 35.12 experts meetings. Is this circumspection in action? I suspect so.
Finally, according to the decision, the removal of immunity applies only to claims from those who have instructed the expert witness. So what of the poor Single Joint Expert? The notion that this role opens an expert to suit from all parties may cause a moment’s reflection in future! Inevitably, perhaps, one party or other will feel disappointed by the SJE’s opinion. Since courts are now very hard to persuade that they should allow a second expert into a trial, it may be easier for a disgruntled litigant to find an expert who is prepared to support a claim against the SJE.
It will be clear that I am troubled by many aspects of the decision of the Supreme Court. But that isn’t because I think expert witnesses needed the blanket immunity. I don’t think they did. I just think they have got it round the wrong way.
Having worked with the Law Commission on their careful deliberations on the admissibility of expert evidence in criminal proceedings, I am perhaps predisposed to see value in that body’s approach to tackling difficult questions. If this unsatisfactory decision from the Supreme Court does, in practice, result in a serious chilling effect on the availability of expert witnesses, we may end up with the Law Commission looking at how to change the law so as to encourage a ready supply of expert witnesses back into court. How much better if we had instead asked the Law Commission today how best to provide a remedy for the rare wrong perpetrated by a negligent expert witness.
Thank you very much for your kind attention. (Applause)