Expert immunity
Case notes: The removal of expert immunity – will negligence claims follow? Jones v Kaney
Surveyors are increasingly being asked to act as experts in civil proceedings.
This could involve providing valuations, assessing alleged defects in building projects or giving an expert opinion on the cause of such defects in negligence claims against other professionals.
Most will be familiar with the process of acting as an expert witness, which will usually involve discussions with the expert acting for the other party and submitting a joint report.
However, many will not be aware of the law that governs the relationship between the expert and their client when undertaking this work, nor of an upcoming case that may enable a client to sue their expert witness for negligence if they do not perform their duties to an adequate standard.
It is established law that witnesses in court proceedings cannot be sued for the things they say in evidence during court proceedings.
The main reason given for this rule is that, without it, witnesses might alter their evidence for fear of proceedings being brought against them, and that would be contrary to the interests of justice. However, the case of Jones v Kaney [2010] EWHC 61 (QB), decided in January, may see this protection removed by the end of the year.
Background
Mr Jones had been involved in a road traffic accident in 2001, following which he claimed damages for personal injury. A substantial part of the claim was for psychiatric injury.
Mr Jones’s solicitors instructed Dr Kaney to advise on the psychological aspects of the claim, and her initial conclusions were that Mr Jones was suffering from post-traumatic stress disorder (PTSD). The expert for the other side disagreed, concluding that Mr Jones was exaggerating his symptoms.
The case proceeded, and the judge ordered that both experts should prepare a joint statement. For those not familiar with the process, this involves both parties meeting to discuss their findings and preparing a report outlining the matters on which they agree and disagree.
Dr Kaney had a telephone discussion with the other expert in November 2005, following which the other expert prepared a joint statement and sent it to Dr Kaney the same day.
The report included statements that significantly undermined Mr Jones’s claim, concluding that he was ‘deceptive and deceitful’ and that his symptoms ‘did not reach the level of a psychiatric disorder’. Despite this, Dr Kaney signed the statement without comment or amendment.
Dr Kaney wrote to Mr Jones’s solicitors explaining that the report did not reflect the discussion; she had failed to check the joint statement properly before signing it, but had done so because she had felt pressured to do so by the other side; that she had not seen the other expert’s report before the telephone discussion; and she had forgotten key elements of her instructions and Mr Jones’s life during the discussion.
Mr Jones’s solicitors applied to the court to appoint a new expert, but they were refused. The case settled for considerably less than Mr Jones had claimed, directly as a result of the report. Mr Jones then brought a case against Dr Kaney for negligence.
The case
Dr Kaney did not dispute the facts of the case. Instead she claimed that, as an expert witness, she had immunity from claims relating to her expert evidence. The leading authority on this issue is Stanton v Callaghan [1998] EWCA Civ 1176.
That case confirmed that the immunity for expert witnesses currently covers the contents of any report prepared for use during the proceedings (and served on the other side), anything said or done during joint discussions between experts acting on behalf of each party, oral evidence given at trial and any work before trial that is ‘intimately connected with the conduct of the case in court’ (emphasis added).
Dr Kaney could therefore be sued for any negligent advice she had provided to Mr Jones directly, but not for her actions during the telephone discussion or in the preparation of the report.
Mr Jones’s lawyers argued that this was an outdated protection and that a similar protection had already been removed for lawyers in court. They also argued that blanket immunity breached the right to a fair trial granted by Article 6 of the European Convention on Human Rights.
The judge agreed with Dr Kaney. Stanton was clear that such immunity existed and, as it was a decision by the Court of Appeal and it had never been overturned by the House of Lords, the judge was obliged to follow it.
Mr Jones’s lawyers argued that being the case, the Court of Appeal would also be bound by the decision, and therefore the only way forward for him was to take his case straight to the Supreme Court (which replaced the House of Lords in October last year).
Under section 12 of the Administration of Justice Act 1969 it is possible for a case to leap-frog the Court of Appeal to the Supreme Court, provided certain conditions are met. The judge decided the relevant conditions were met and granted the certificate entitling Mr Jones to apply directly to the Supreme Court for leave to appeal.
The judge stressed that it was for the Supreme Court to decide whether to hear the case.
On 6 April, three judges of the Supreme Court, including Lord Phillips, the President of the Supreme Court, granted permission for the appeal to be heard. No date for the hearing has been set, but the speed with which permission was granted suggests the case could be heard sooner rather than later.
What happens now?
The case will proceed to the Supreme Court, where the justices will consider whether witnesses in court proceedings should continue to enjoy immunity from being sued for negligence when providing their evidence.
Recent cases have been decided in favour of removing immunity. As mentioned above, in the case of Hall v Simon [2000] UKHL 38, the House of Lords decided to remove immunity for lawyers appearing in court.
Previously, a lawyer could not be sued in negligence for a poor court performance. As with expert witnesses, an advocate owes a duty both to his client and to the court. In the event those duties conflict with each other, the duty to the court takes precedence.
This means that neither an advocate nor an expert witness can deceive the court and give evidence he or she knows to be false. It was argued that lawyers needed immunity because their duty to the court might be undermined if they were afraid of saying something that could result in them being sued.
This fear has proven to be misplaced. Lawyers, like expert witnesses, are professionals. They are paid well for their services. If they perform badly, the consequences to their client can be devastating, and it is only right that if their negligence causes significant loss to their client, they should be liable for compensation.
Comment
Every competent expert witness will be only too aware of the consequences to the client of performing poorly in their duty as an expert witness. As a matter of professional pride those experts will produce work of a high quality and to the best of their abilities.
It is unlikely that the removal of immunity will affect the day to day practice of most expert witnesses since few will have been aware that they were immune from an action in negligence in the first place.
It was also established in Hall the fear of a civil suit was not a sufficient reason for a lawyer to overlook their overriding duty to the court, and it is unlikely that anything less will be expected of professional witnesses. This is especially so given the amount of money that the client will often be paying to retain the services of the expert.
Furthermore, there has always been the possibility of suing an expert for negligence in relation to work undertaken outside the court process, such as advice on particulars of claim.
It is therefore questionable whether the removal of the immunity in Jones will make any difference to the day to day lives of most experts, other than the almost inevitable increase in insurance premiums.
In the long term it may even have a positive effect on the expert witness market, as those witnesses who are not robust enough to deal with the pressures of litigation are made to face the consequences of their actions.
Even higher insurance premiums may have a positive effect, by deterring those who may not grasp fully the risks involved, to them and the client.
There will always be unhappy clients who will seek to recover from the expert in the event they are unsuccessful, resulting in more stress and higher costs for those who have not been negligent.
Some experts may feel pressure to provide a more favourable report than the facts warrant, or to take a harder line in discussions with opposing experts, making settlement more unlikely. But these will be in the minority, and most will continue perform their duties to the standard expected of them.
The general consensus amongst lawyers is that the immunity will be removed. More cases against expert witnesses should therefore be expected. Anyone undertaking work as an expert should be aware of the risks and ensure they have sufficient insurance in place.
Ceri Norman-Short is a trainee solicitor at Collyer Bristow LLP
