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  Expert witness immunity under threat - Part 1

A leapfrog certificate has brought the future for expert witness immunity into the spotlight once more

In recent years there has been a succession of cases in which an expert’s immunity from claims for damages has come under the spotlight. An appeal that has jumped up to the Supreme Court brings immunity under the spotlight once again. This first part of a two-part look at expert witness immunity considers the recent history of immunity. The second part (in our next ewire) will consider what might come out of the Supreme Court.

Immunity and the Common Law

Expert witness immunity is not some special dispensation for experts. As a matter of public policy, all witnesses in legal proceedings are protected from claims for damages resulting from anything said or done in court. The policy justification for this immunity is not to provide a benefit to the witness, but to help the courts reach just decisions by encouraging witnesses to express themselves freely. It was given classic expression by Salmon LJ in Marrinan -v- Vibart [1963] 3 AER 380, an appeal decided in the early 1960s:

‘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.’

And, with the advent of CFA-funded litigation, that statement applies even more today than it did then!

The concept of immunity is not statute based, but has its origins in case law. The leading case on the question of expert witness immunity is undoubtedly that of Stanton -v- Callaghan [1998] EWCA Civ 1176, in which the appellants had sued their expert for negligence when, at a meeting of experts, he had revised his opinion so as to undermine the appellants’ claim against their insurers for subsidence in their property. The Court of Appeal upheld the expert’s claim to immunity from suit in respect of both the contents of his report and the joint statement.

That was all nice and clear, but the clarity didn’t last long. In 1998, it wasn’t just witnesses who were immune from claims for damages, advocates were also immune. But, this was to change just 2 years after Stanton.

In Arthur J S Hall -v- Simons [2000] UKHL 38, the House of Lords abolished an advocate’s immunity on the basis that it was not needed to ensure that an advocate would respect his overriding duty to the court. However, it upheld immunity from suit for ‘witnesses’ giving oral testimony, because that testimony should be given ‘freely without being inhibited by the fear of being sued’. Like advocates, experts owe an overriding duty to assist the court. Consequently, the court left scope for an argument that, unlike witnesses of fact, experts do not require such immunity because they are already under a strict duty to the court.

Of course, claims to damages are not the only way an expert can be vexed, and a potentially serious contraction of the immunity came in 2004.

In Phillips & Others -v- Symes & Others [2004] EWHC 2330 the Court of Appeal applied similar principles to those considered in Hall. It asked whether ‘expert witnesses need immunity from a costs application against them as a furtherance of the administration of justice’. The Court took the view that such a safeguard was not needed and allowed an expert witness to be joined as a respondent in an action for the sole purpose of awarding a very large adverse costs order against him. But, despite appearances, this danger was not as great as it seemed because an expert would have to act in ‘flagrant, reckless disregard of his duties? before such an application would succeed.

Immunity leapt on once again

Each of these cases has chipped away at the principle of expert immunity. And in January 2010 Mr Justice Blake delivered a judgment in the High Court that may open the way to further erosion. In Paul Wynne Jones -v- Sue Kaney [2010] EWHC 61 (QB), Blake J considered whether a negligence claim against an expert witness should be struck out summarily on the basis of the Stanton decision. The background to the case was as follows.

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 an expert to advise on the psychological aspects of the claim. In her initial report, the expert suggested that the claimant was, indeed, suffering from PTSD. However, the expert underwent something of a reversal of opinion when, following a telephone conference between experts, she signed a joint statement that effectively said she had found the claimant to be ‘deceptive and deceitful’ and that his psychological reaction to the accident did not amount to PTSD. The claimant’s request to instruct another expert was denied by the court and the action was settled for considerably less than it might have done, but for the expert’s signing of the joint statement in the terms that she did. The claimant then commenced negligence proceedings against the expert, seeking damages.

It is interesting to note that the Jones case bears a striking similarity to the Stanton case in that it is the expert’s change of opinion at the joint meeting, thereby undermining the case of the instructing party, that has given rise to an attempt to overturn the witness immunity as it applies to expert witnesses.

The expert entered no defence to the claim against her on the merits, but instead pleaded immunity under the principle in Stanton. She applied for a summary judgment striking out the proceedings.

The claimant opposed the application to strike out on the grounds that Stanton was no longer binding law since the House of Lords decision in Hall undermined the reason for the policy of expert witness immunity. The claimant further argued that the decision in Stanton preceded the coming into force of the Human Rights Act 1998 in October 2000 and was contrary to Section 6 of that Act – the right to a fair trial. Finally, the claimant argued, in the alternative, that if Stanton remained an authority that was binding on courts up to and including the Court of Appeal, the court should grant a certificate to enable the Supreme Court to determine whether they would wish to grant leave to appeal to it in the present case. (The barrister for the appellant in Jones -v- Kaney is speaking at the forthcoming Bond Solon conference - see Conference notice in this issue of the e-wire.)

Counsel for the expert responded by saying that, although the policy basis for the decision in Stanton may have narrowed, none of the factors relied upon by the claimant served to deprive it of the status of binding authority. The decision, he said, had never been criticised by the Court of Appeal or the House of Lords. Indeed, in the very case that the claimant relied upon, namely Hall, Lord Hoffmann had confirmed his assumption that the authority was correct.

Blake J held that Stanton was binding on both him and the Court of Appeal. Accordingly, he granted the claimant a ‘leapfrog certificate’, enabling the claimant to apply for permission to appeal the question directly to the Supreme Court. The Supreme Court has allowed the appeal and it is scheduled to be heard on the 11 January 2011.

Next time, we will consider whether the Supreme Court is likely to declare ‘open season’ on expert witnesses and what might usefully come out of the appeal.

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Issue 64
October 2010

Expert witness immunity under threat - Part 1
Jackson on MROs
Conference notice


Current issue
November 2017

A witness summons too far
Handling a potential conflict of interest
Joint and several liability
Conference news
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