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  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 [2006] 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 disciplinary proceedings.

The often-missed 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.

Collins J’s 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.

On a 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.

Nothing in 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.

However, the GMC was not to be cowed by a mere High Court judge. It went off to the Court of Appeal (General Medical Council -v- Professor Sir Roy Meadow [2006] 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 intervene.

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.

His decision 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...’

But the 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 challenges.’

Might the 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.

The question 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.

Possible outcomes

It 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 way.

Perhaps we 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 this?

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 experts.

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.



Issue 65
December 2010

Expert witness immunity under threat - Part 2
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