Expert witness immunity under threat - Part 2
What would be a 'good' outcome at the Supreme Court?
In the first part we looked at the recent background to expert witness immunity and the case of Jones -v- Kaney. Whilst expert witnesses have protection
from civil actions for damages, they have always been open to investigation by
their professional regulators. In 2006 in Meadow
-v- GMC  EWHC Admin 146, Collins J tried to curb what he saw as the
ability of professional regulators to outflank witness immunity. It is
helpful to understand this case because it has important implications for what
might be seen as a ‘good’ outcome from the Supreme Court.
Collins J, sitting in the Administrative Court, took pains to set out the long
history of the witness immunity rule, which goes back at least as far as R -v- Skinner (1772). It was clear he wished to leave no doubt
as to why the rule exists and its fundamental importance in the proper
administration of justice. He went on to decide that its reach encompasses all
principle underpinning witness immunity is that it exists to protect the public, not the witness. One should not necessarily expect
professional regulators to understand this, but it is fundamental to the proper
determination of whether any shortcoming in a witness is serious enough to
warrant action against that witness. This is why Collins J felt it appropriate
for the court to make that judgment.
proposals meshed perfectly with the central tenets of the Better Regulation
Executive’s Principles of Good Regulation, of being proportionate, accountable,
consistent, transparent and targeted. His proposals seemed so sensible because
they stated that the authority granting the immunity, i.e. the court, was the
only authority competent to remove it. It also seems natural that, since the
decisions of professional regulatory bodies (such as the GMC) are appealed to
the Administrative Division of the High Court, the regulatory tribunals are
inferior courts. It is, therefore, logical that matters of expert witness
performance arising in the civil and criminal courts might be referred down to
the regulatory tribunals by those courts.
case-by-case basis, the court could determine whether an expert witness’s
performance, in the context of the litigation, had slipped so badly as to
warrant referral down to the appropriate professional body. It would no longer
be possible for dissatisfied parties in litigation,
often at no cost to themselves, to do a side-run around witness immunity and engage
experts in professional disciplinary proceedings.
Collins J’s decision left professional regulators impotent to deal with
seriously flawed experts. Collins J simply stated that the court, i.e. the
authority granting the immunity, should be the only gatekeeper competent to
remove that protection.
GMC was not to be cowed by a mere High Court judge. It went off to the Court of
Medical Council -v- Professor Sir Roy Meadow  EWCA Civ 1390), and was soon joined by the big guns
in the form of the Attorney General, who asked the Court for permission to
It was a
matter of regret to many experts that the then Master of the Rolls (Sir Anthony
Clarke) delivering the lead judgment, and supported by Auld LJ and Thorpe LJ
(heads of the criminal and family divisions respectively), completely
overturned the proposals put forward by Collins. But, it is interesting to look
a little more closely at the reasoning given.
was not based on a succession of small but undeniable truths building into an
overwhelming argument against Collins ? the kind of forensic analysis one comes
to expect from the senior judiciary. Instead, he appeared to labour peripheral
points, such as whether immunity should be absolute, when that isn’t what had
been suggested. He also did some fine-line walking in resorted to using the
Attorney General’s submissions to justify overruling Collins.
For example, the
Attorney General submitted that it was inappropriate for a fresh immunity to be
created by the common law. Any such change, he stated, was a matter of policy
which should be made by Parliament. The common law should not permit a partial
extension of the immunity. The Master of the Rolls said in his judgment ‘I would
accept those submissions...’
Master of the Rolls saw the implicit contradictions contained therein. Witness
immunity is a common law immunity
which has been refined by the common
law over the years. So he was forced to follow his acceptance of the Attorney General’s
submissions, without even having the time to insert a full stop, with ‘... I do
not intend to say that the common law could never extend a
recognized common law immunity, if principle required an extension.
After all, the common law is always capable of development to meet new
Supreme Court take the view that the logic behind rejecting Collins’ scheme is
capable of some refinement?
The Court of
Appeal, noting that immunity exists to enable witnesses to speak freely, argued
that the case-by-case approach was inappropriate as the witness would not know
before he gave evidence whether immunity would apply. But, do experts
require an absolute immunity? The Collins approach would mean experts knew at
the outset that, providing they gave their opinion evidence competently and in good faith, they
could not be vexed through satellite action. Surely expert witnesses need no
greater degree of protection than that?
Sitting beside the judge
We shall have to wait and see what arguments
the appellant puts forward at the Supreme Court. But in the lower court it was
argued that Stanton was no
longer binding law because the House of Lords decision in Hall undermined the reason for the policy of expert witness
immunity. Given the frequency with which a
supposed analogy between advocate and expert immunity is raised, this view is
clearly an attractive line of argument for many lawyers. But it doesn’t really
hold, and not simply because the one thing an expert must not do is advocate. The logic of Collins J’s judgment in Meadow is that conceptually the expert
sits in court beside the judge, not beside those who instruct him. The duty is
one owed to the court, so surely it should be the court that has a notional
cause of action in negligence.
of whether an expert witness has undertaken his work with reasonable skill and
care, having regard to his duties to the court, is properly one a party should
be entitled to ask. If the expert witness has failed in this duty, he should be
called to account, but by the court not the litigant.
seems unlikely that the Supreme Court would entertain the Jones appeal unless it had something it wanted to say on the matter
of witness immunity. There seems to be three options. It might want to say that
expert witness immunity remains based on sound policy principles and will
remain. It could say that, like advocates, expert witnesses don’t need any
immunity to ensure they abide by their overriding duty to the court, enshrined
in the CPR, and simply wipe it away. Or it could adjust the immunity in some
can assume that the Supreme Court could have simply refused to hear the appeal
if it wanted to send the message ‘immunity is secure’, and let’s assume for now
that it sees the danger in simply declaring ‘open season’ on expert witnesses by removing experts entirely from the scope of witness immunity.
Perhaps, the Supreme Court wants to tinker with the immunity. How might it do
Well, if the
expert’s position alongside the judge is accepted, then the logical course would
be for the Supreme Court to permit claims of negligence against expert
witnesses to be heard as an appeal against the original trial. The outcome of
such an appeal, where negligence is found, should be that the applicant has grounds
for a retrial and the court can refer the expert to the appropriate
professional regulator for sanction.
If, however, the Supreme Court does simply
remove experts from the scope of witness immunity to claims for damages, it
will have to be mindful of how the greater public good of the proper
administration of justice (through a ready supply of expert witnesses) can
remain protected. If expert witnesses have their immunity to suit for damages
removed, they – and their insurers – will need to be ready to deal with actions
brought against them by disgruntled, possibly impecunious, litigants who lose
their cases. And how many professional regulators would see such actions as
cause for their own disciplinary functions to be engaged? Indeed, how many
professionals will trouble themselves to assist the
court in such a situation – and who would agree to be an SJE and face potential
actions from all sides?
Some have become inured to the claims of a
reduction in the pool of experts. But such people must reflect on the fact that
expert witnesses are not the same as
lawyers. Lawyers are part of the legal system, but expert witnesses are simply
guests in it. Taken together with current efforts at the Ministry of Justice to
cap expert witness fees and the potentially very serious consequences to an
expert’s livelihood of a professional disciplinary hearing arising from his
occasional forensic work, loss of immunity to claims for damages will inevitably
reduce the supply of experts to the court as experts use their time for better
paid and less contentious work.
One step the Supreme Court might prudently
take, if it removes immunity, is to adopt Collins J’s approach and make the
court the gatekeeper ? only with the court’s permission could any action in
damages be initiated. That might strike the necessary balance between the right
of the litigant to seek redress and the needs of the public to have access to
And as a
final thought, any defendant who bemoans the immunity protection of an expert
witness with whose opinion they disagree ought to reflect on the fact that it
also protects those experts whose opinions they favour.