Expert witness immunity: the end of the road?

Experts' immunity: why does it exist?

One often hears it said, that experts have an absolute ‘immunity from suit’. What do we mean by this? In short, it means an expert cannot be sued in respect of his court work as expert.

There are certain activities for which an expert has never been immune from legal action. So, an expert is open to an action for libel if he defames somebody in his expert report; he can be restrained from committing or repeating a breach of confidence (and it follows that he is liable in damages for any such breach). The expert can also be sued for the (very rarely used) tort of malicious prosecution; and a criminal defendant is able to sue him for conspiracy to injure where the expert creates or fabricates or destroys evidence, albeit where he does so outside his role as witness.

There can be some fine distinctions here: an expert who lies in the witness box, without more, is immune; but where he agrees in advance to provide false testimony that allows a prosecution to proceed, then he is vulnerable.

So far as negligence is concerned, which is the expert's principal concern and which will be the focus of the Supreme Court's decision, the current position is that the expert cannot be sued for negligence or breach of contract for anything he does in his role as expert and which is connected with his role as a witness. The limits of this immunity can be best understood if one first understands why the immunity exists.

The immunity exists, not for the benefit of the expert as such, but for the public policy requirement that all witnesses, including expert witnesses, should not be inhibited from giving frank and fearless evidence. So far as the expert witness is concerned, this avoids the tension between a desire to assist the court and the fear of the consequences of a departure from advice previously given to the client. The limits to this protection are therefore based around the fact that its foundation is the need to protect the integrity of the court process and the witness's role in it. Thus, in the last major decision in which the immunity was considered, Stanton v Callaghan, in 1998, the court examined whether the actions of the expert, which were being challenged, were so closely connected with the conduct of the case in court that it could be said to be part of the process of deciding how the case would be conducted when it comes to court. Thus, all testimony, including the expert reports exchanged with the opposing party in a civil case, are immune from suit, as are the steps the expert takes in an experts' without prejudice meeting, and in the preparation of joint or agreed statements of facts.

Where the expert is not immune, even now, is in the preparation of an expert advisory report, which might, for example, encourage the client to proceed with his claim or defence. Reported cases which have held experts liable for negligence in such circumstances have correctly held that work attacked at the advisory stage could not be said to be akin to challenging the court testimony of a witness.

What happened in Jones v Kaney?

As will be seen, the facts – which given the context (explained below) in which the case came before the High Court last January are so far undisputed – demonstrate a real lesson in how not to undertake expert witness work.

In summary, Blake J had to decide whether a negligence claim against an expert witness should be struck out summarily on the basis of the decision in Stanton v Callaghan. The Defendant is a consultant clinical psychologist. The Claimant's solicitors instructed the Defendant to advise on the psychological aspects of a psychiatric injury for which the Claimant was seeking damages in a personal injury claim arising out of a road traffic accident. Following initial reports prepared by the Defendant, there was an issue in the litigation as to whether the Claimant was indeed suffering from post-traumatic stress disorder (PTSD) or was consciously or unconsciously exaggerating his injuries. The Defendant had initially reported that the Claimant had symptoms that suggested a diagnosis of PTSD.

The district judge ordered pursuant to provisions in CPR 35 that the experts hold discussions and prepare a joint statement, in an effort to focus the areas of agreement and disagreement. Following a telephone discussion, a draft of a joint statement was sent to the Defendant for consideration on the same day by her opposing expert. The Defendant signed the joint statement without comment or amendment, in terms that the Claimant's psychological reaction to the accident did not amount to PTSD and that the Defendant had found the Claimant to be ‘deceptive and deceitful’.

Two extracts from that joint statement indicated that it was damaging to the Claimant's prospects of success in recovering damages for his head injury. The first extract recorded: ‘Both experts agree that [the Claimant's] psychological reaction, after the accident, was no more than an adjustment reaction that did not reach the level of a psychiatric disorder of either a depressive disorder, or post traumatic stress disorder’. The second extract recorded: ‘[the Defendant] has found [the Claimant] to be very deceptive and deceitful in his reporting. He denied any previous psychological trouble or past accidents, which is inconsistent with the records or other reports. Despite enquiry, he did not report to her the other road traffic accident of 28.02.2001. We therefore agree that such inconsistencies would be suggestive of conscious mechanisms and would raise doubts of whether his subjective reporting was genuine.’

The Claimant's solicitor – no doubt not expecting this conclusion – naturally enquired of the Defendant why she had changed her opinion so radically and without warning. In particular, the solicitor wanted to know upon what basis she had found the Claimant to be very deceptive and deceitful. The Defendant's answers included the following:

She had not seen the reports of the expert to the Defendant in the personal injury claim at the time of the telephone discussion with that expert;

The Claimant's response

After the personal injury claim had been settled, the Claimant – not surprisingly – sought legal redress from the Defendant. The only avenue open to him was a claim for damages for negligence against the Defendant. The Defendant's inevitable response to the claim was not to raise a defence based upon the merits of her action, but rather to seek to strike our the action on the grounds of the expert witness immunity which, pursuant to the decision of the Court of Appeal in Stanton, she is still entitled to.

The Claimant's only response to this had to be a root and branch challenge to the continuing availability of such an immunity and so he sought to persuade Blake J that he was entitled to sue an expert retained by him even though the grounds of his complaint arose out of the expert's actions as a witness in his personal injury litigation. So, the central issue in this case is whether Stanton is still a binding authority and, therefore, good law.

The Claimant argued two main points. The first was that Stanton was no longer binding law as it relied substantially on the principle of advocate's immunity, which had subsequently been overruled by the House of Lords in Arthur JS Hall v Simons, 2002. The second argument was that Stanton preceded the Human Rights Act 1998 (the ‘HRA 1998’) and, therefore, did not reflect the requirement of s6 of the HRA 1998, which provides that public authorities, including courts, are obliged to act in a manner which is compatible with the European Convention on Human Rights (the ‘Convention’). As to this, the claimant argued that as Article 6 of the Convention provides for a right to a fair trial, then a blanket immunity from suit has to be contrary to this right. The Claimant relied in this respect on the ECHR decision in Osman v UK (1999), (which, broadly, provides that disproportionate blanket immunities which prevent Claimants seeking to recover damages in tort may be contrary to article 6 of the Convention).

The Court's attention was also directed to other developments in the law post Stanton concerning expert witnesses, which all point to the conclusion that their immunity is slowly but surely being eroded. In one of these, Philips v Symes (No 2) [2005], it was held that an expert psychiatrist was vulnerable to an order for costs under CPR 35, if his evidence as to whether a party had the mental capacity to manage his own affairs was wrong. To make such an order, the court would need to be satisfied that the expert evidence caused significant expense to be incurred and was given in flagrant reckless disregard of the expert's duty to the court.

The second decision is the well-known one of Meadow v GMC, 2007. In Meadow, in summary, the Court of Appeal held that professional disciplinary proceedings arising from an expert's evidence given in court proceedings did not infringe the principle of witness immunity. The Claimant in Jones v Kaney, therefore, argued with some force that since an expert witness who gives negligent advice could be subject to sanction by his professional body, there was no sensible justification for retaining immunity from suit for negligence on public policy grounds.

The Defendant argued that Stanton remains good law: none of the factors which the Claimant relied on prevented Stanton from being a binding authority. It had never been criticized by the Court of Appeal and in Meadow it was common ground that Stanton remained good law.

Further, as the immunity from suit is a longstanding common law principle which has not been criticized by the European Court of Human Rights, the Defendant argued that the observations in Osman would be too indirect and remote to deprive the decision in Stanton of its binding status.

The High Court ruling

Blake J sitting in the High Court was inevitably bound by the decision in Stanton, since it is a decision of a superior court, and so had to strike Mr Jones' claim out. Strictly then, expert witnesses continue to enjoy immunity from suit - for the time being. Further, the decision in Jones v Kaney confirms the width of the scope of the immunity since it covers pre-trial work undertaken by an expert witness who is connected with a case, including anything said or done by an expert witness in court (even if the expert acts dishonestly), the content of an expert witnesses' report if accepted in evidence, and any concessions made/opinions expressed in an experts' meeting or joint statement.

However, the judge was uncomfortable with the ruling he was forced to make. Blake J noted that where an expert owes a duty of care to a Claimant when first advising and preparing reports, that duty should continue:

‘when signing a joint statement which ordinary principles of professional competence would suggest that she needed to prepare for, read, and ensure herself that it reflected her true opinion, and was based upon proper facts or professional judgement.’

In the event, as Stanton was binding on the High Court, the parties recognized that it was equally binding on the Court of Appeal. As neither party submitted that there would be any benefit in the Court of Appeal re-examining the law on strike-out in relation to an expert's immunity against negligence claims, the parties consented to the grant of a certificate to apply for leave to appeal to the Supreme Court, under s.12 Administration of Justice Act 1969, in order that the issue of expert witnesses' immunity from suit is authoritatively determined. As a result, Blake J granted the so-called leapfrog certificate and so the Supreme Court will rule definitively on the immunity principle following a hearing listed for 11 and 12 January 2011.

Waiting for the Supreme Court

Will the immunity survive the Supreme Court? In my view it will not. With one possible exception; there are no convincing policy reasons for granting immunity for claims arising from incompetence in circumstances where the expert, though owing his primary duty to the court (see CPR 35 so far as concerns civil proceedings), nonetheless will also have a contractual engagement with the client paying his (often generous) fees, whereunder he will owe the usual duties of competence and care.

It may have been said in Stanton that the immunity principle supports a ‘supervening public interest which transcends the need to provide a remedy in the individual case’. Maybe, but the facts of this case, if proven, would present a striking and egregious example of the immunity principle in operation if the appeal is dismissed.

It has been suggested that if the appeal is allowed, experts may be reluctant to appear, that there will be fewer of them. If that is true, it may be a good thing, since it would suggest that the remaining pool will comprise the best of the expert community.

But I doubt that this will happen. There has been no noticeable decline in the availability of experts generally post the Meadow decision, and in any case, experts tend to be people of integrity: why should they be any more fearful of their (in)ability to discharge their functions competently at the witness stage of the court process than the earlier stages? The vast majority of experts are professional people, highly skilled in their areas of expertise and drilled in the requirement of the court process. While accepting that we live in a litigious society (in which the solicitors' profession is the current professional defendant of choice) it is difficult to believe that experts will in future undertake their duties with one eye constantly on the threat of being sued if the present immunity is indeed removed.

There may, of course, be some implications for experts with respect to levels of PI cover, but I seriously doubt there will be an avalanche of claims against the expert community if the appeal is allowed. That issue provides, in my view, the one argument that may just cause the Supreme Court to pause before overruling – or at least restricting – the expert's immunity – the fear that it may spark satellite litigation, in which parties seek to re-run what happened in court and in the run up to it. However, that has not happened in the wake of the abolition of advocates' immunity and I do not see it happening with experts. It may be that the Supreme Court will still protect the evidence given in court as a live witness, but if that is all that survives, there will have been a major change. The judgment of the Supreme Court is likely to be given in March or April 2011.