Evidence — Expert — Litigation — Joint statement of experts — Whether cause of action in negligence against expert in connection with litigation — Whether witness immunity principle applies — Whether immunity applies where trial does not proceed
The first
defendant expert was retained by the plaintiffs in connection with proceedings
instituted by them against the insurers of their house; the insurers had
rejected a claim for the cost of underpinning following earlier similar work.
In the course of those proceedings the first defendant met with the expert for
the defendant insurers and signed a joint experts’ statement setting out an
assessment of the risk with the original system of underpinning and an agreed
remedy that did not involve full underpinning. He then prepared his final expert’s
report recommending full underpinning at a likely cost of some £77,339 and, as
an alternative, the jointly agreed remedy at a likely cost of £21,130. The
defendant insurers paid £16,000 into court, which the plaintiffs accepted. The
plaintiffs did not use the money for remedying the foundations, but sold their
house for £50,000; it was alleged to be worth £105,000 had it been repaired by
total underpinning. The plaintiffs brought the present proceedings alleging
that the first defendant was negligent and in breach of his retainer in
agreeing to the suggested remedy in the agreed joint statement in the earlier
proceedings. The defendants’ application to strike out the plaintiffs’ claim
under RSC Ord 18 r 19 was dismissed, in part, by the judge. They appealed.
allowed and the statement of claim struck out.
first defendant had been given instructions to agree as much as possible and
had not acted in breach of his retainer in agreeing the joint statement. An
expert witness who gives evidence at a trial is immune from suit in respect of
anything he says in court, and that immunity will extend to the contents of the
report that he adopts as, or incorporates in, his evidence. Where an expert
witness gives evidence at trial, the immunity that he would enjoy in respect of
that evidence is not circumvented by basing a suit on the report itself rather
than the evidence. The immunity does not extend to protect an expert retained
to advise on the merits of a party’s claim in litigation from a suit by that
party in respect of that advice, notwithstanding that it was in contemplation
at the time the advice was given that the expert would be a witness at trial if
that litigation were to proceed. An expert is immune from suit by the party
retaining him in respect of a report that he prepares for the purpose of
exchange prior to trial in circumstances where he does not, in the event, give
evidence at the trial either because the trial does not take place or because
he is not called as a witness.
the court in resolving the issues and coming to a just conclusion. There was no
duty on the experts to inform their lay clients or the solicitors or to seek
instructions before recording the concession in the joint statement.
The following
cases are referred to in this report.
Dawkins v Lord Rokeby (1873) 8 QB 255
Evans v London Hospital Medical College (University of London)
[1981] 1 WLR 184; [1981] 1 All ER 715
Graigola
Merthyr Co Ltd v Mayor, Aldermen and Burgesses
of Swansea [1928] 1 Ch 31
Hughes v Lloyds Bank [1998] PIQR 98
Hurlingham
Estates Ltd v Wilde & Partners [1997] 1
Lloyd’s Rep 525
Landall v Dennis Faulkner & Alsop [1994] 5 Med LR 268
Lincoln v Daniels [1962] 1 QB 237; [1961] 3 WLR 866; [1961] 3 All ER
740
Marrinan v Vibart [1963] 1 QB 234; [1962] 2 WLR 1224; [1962] 1 All ER
869
Marrinan v Vibart [1963] 1 QB 528; [1962] 3 WLR 912; [1962] 3 All ER
380, CA
Munster v Lamb (1883) 11 QBD 588
Murray
Pipework Ltd v UIE Scotland Ltd (1990) 6
Const LJ 56
National
Justice Compania Naviera SA v Prudential
Assurance Co Ltd, Ikarian Reefer, The [1993] 2 Lloyd’s Rep 68; [1993] 2
EGLR 183; [1993] 37 EG 158
Palmer v Durnford Ford [1992] QB 483; [1992] 2 WLR 407; [1992] 2
All ER 122
Rees v Sinclair [1974] 1 NZLR 180
Richard
Roberts Holdings Ltd v Douglas Smith Stimson
Partnership (No 3) (1990) 6 Const LJ 70
Rondel v Worsley [1969] 1 AC 191; [1967] 3 WLR 1666; [1967] 3 All
ER 993, HL
Roy v Prior [1971] AC 470; [1970] 1 QB 283; [1969] 3 WLR 635;
[1970] 2 All ER 729, HL
Saif Ali v Sydney Mitchell & Co [1980] AC 198; [1978] 3 WLR 849;
[1978] 3 All ER 1033, HL
Silcott v Commissioner of Police for the Metropolis (1996) 8 Admin
LR 633
Watson v McEwan [1905] AC 480
M(A
minor) v Newham London Borough Council; sub
nom X (Minors) v Bedfordshire County Council [1995] 2 AC 633; [1994]
2 WLR 554; [1994] 4 All ER 602; 92 LGR 427, CA; [1995] 2 AC 633; [1995] 3 WLR
152; [1995] 3 All ER 353, HL
This was an
appeal by the defendants, Brian F Callaghan, Brian F Callaghan & Associates
and Brian F Callaghan & Partners, against a decision of Mr Ronald Walker
QC, sitting as a deputy judge of the Queen’s Bench Division, who had dismissed
the defendants’ appeal against the decision of the master refusing to strike
out the claim of the plaintiffs, Philip Gerald Stanton and Sylvia Mary Stanton,
for damages for negligence and breach of retainer.
Rupert Jackson
QC and David Sears (instructed by Veale Wasbrough, of Bristol) appeared for the
appellants; Jonathon Coggins (instructed by Norman Saville & Co)
represented the respondents.
Giving the
first judgment, CHADWICK LJ
said: This is an appeal, with the leave of the judge, against the order made on
September 10 1997 by Mr Ronald Walker QC, sitting as a judge of the Queen’s
Bench Division, whereby he dismissed the defendants’ appeal against the refusal
of the Master to strike out the plaintiffs’ claim pursuant to Ord 18 r 19 of
the Rules of the Supreme Court 1965 on the grounds
of the court.
The appeal
raises a question on which, as we were told, there has been no previous
decision in this court: namely whether claims for negligence and breach of
retainer can be brought by a party to pending proceedings, against an expert
whose evidence he proposes to call in those proceedings where the claims are
said to arise out of the expert’s conduct in preparing, in conjunction with the
expert instructed by the other party to those proceedings, a joint statement
indicating what parts of the evidence that they were proposing to give at trial
were or were not in issue. The preparation of such a joint statement is, of
course, recognised in Ord 38 r 38 RSC.
The facts as
alleged in the statement of claim or as they appear from contemporary documents
that are not in dispute may be stated shortly. The plaintiffs, Mr Philip
Stanton and his wife, were the owners of a dwelling-house known as Espica
Villa, Marsh Road, Shabbington, Aylesbury. In October 1981 the plaintiffs were
concerned that their property had suffered subsidence damage. With the
agreement of their insurers, partial underpinning at the property was carried
out in 1982. That work failed to stabilise the property. Further subsidence
occurred. In November 1983 Mr Callaghan or his firm, Brian Callaghan &
Associates, were engaged by the plaintiffs to make a report. In that report,
which was dated March 5 1984, Mr Callaghan advised that partial underpinning
had been an inappropriate solution; but that, that work having been carried
out, what was now required was total underpinning of the building.
On the basis
of that report Mr Stanton made a claim against his insurers for the cost of
total underpinning of the building. That claim was rejected. On August 26 1986
Mr Stanton commenced proceedings against the insurers in Oxford District
Registry of the Queen’s Bench Division under reference 1986 S 447. Mr Callaghan
was retained to provide expert advice in support of that claim.
On March 9
1987 the district registrar gave directions in the proceedings 1986 S 447.
Those included a direction that expert evidence be agreed if possible and,
failing agreement, be limited to three expert witnesses on each side. There
does not appear to have been an express direction, under Ord 38 r 37 RSC, for
the reciprocal disclosure of written reports within any specified time; or any
direction, under Ord 38 r 38 RSC for a meeting of experts ‘without prejudice’.
Nevertheless, it is clear from contemporary correspondence and from the
pleadings: (i) that Mr Callaghan’s report of May 5 1984 had been provided to
the insurers’ solicitors; (ii) that the insurers’ solicitors had themselves
instructed an expert, Mr Russell, whose report, prepared in or about January
1987, had been provided to Mr Callaghan; and (iii) that Mr Callaghan had set
out his comments on Mr Russell’s report in a letter dated May 6 1987. In
December 1987 Mr Callaghan prepared a contract specification in respect of the
remedial works — that is to say, total underpinning of the building — that he
then considered necessary. On the basis of that contract specification a
quotation for the works was obtained in the sum of £64,812.
The trial of
action 1986 S 447 was fixed to commence on January 11 1990. On July 17 1989 Mr
Callaghan attended a conference with solicitors and counsel then acting for Mr
Stanton. In the course of that conference he was asked to revisit the property
and report on certain specific matters. He did so on or about July 26 1989. He
was subsequently asked to provide a full report.
Mr Callaghan
prepared a draft report, dated December 11 1989, under his new firm name of
Brian Callaghan & Partners. The draft was described as ‘a full report on
the structural stability of Espica Villa’. It contained advice as to the
original cause of the subsidence to the property and the suitability of the
partial underpinning scheme that had been carried out, and set out the firm’s
recommendations as to the works needed to achieve future stability of the
property and an estimate of the cost of those works. In summary, the
conclusions, as they appeared in the draft, were: (i) that the original problem
had been caused by dehydration of the clay subsoil attributable to the proximity
of willow trees; (ii) that the correct remedial works to solve that problem
would have been to remove the trees and repair the property following
rehydration of the ground over time; (iii) that the course actually adopted in
1982 — partial underpinning — was ‘totally the wrong procedure’ because it gave
rise to differential movement on rehydration due to the stiffness created by
underpinning at only one section of the building; and (iv) that, in order to
overcome that problem, the underpinning should now be continued over the full
length and area of the property so as to place the property on similar
foundations throughout.
On December 14
1989, before a report in the form of the draft had been sent to Mr Stanton or
his solicitors, Mr Callaghan attended a meeting at the property with Mr Kelsey,
the expert then instructed on behalf of the insurers. He did so on instructions
contained in a letter dated December 7 1989 from Mr Stanton’s solicitors:
The Insurance
Company’s Solicitors are pressing for us to exchange reports with them and have
suggested that a meeting of experts take place before the Christmas break at
Shabbington with a view to agreeing as much as possible and making a list of
those areas where a dispute really does exist.
Following that
meeting on December 14 1989 Mr Kelsey prepared a joint statement that he and Mr
Callaghan each signed. That joint statement recorded that the solution adopted
before 1982 — partial underpinning — did entail a considerable risk of future
damage; and that some further damage had indeed occurred, probably due to
slight foundation movement.
The joint
statement contained the following paragraphs, which are material:
3. Risk of
differential settlement
The experts
agreed that there is a risk of differential foundation movement however slight
with the present system which incorporates foundations with considerable
difference in formation levels.
4. Agreed
Remedy
The experts
agreed that a solution to the problem stated in item 3 above would be to
disconnect the piers from the underpinning beams and form a gap between the
underside of the beam and the top of the pier. This gap to be 150 mm deep and
to be infilled with low density polystyrene.
Mr Callaghan
has deposed, in an affidavit sworn on February 16 1998, which was admitted on
this appeal without objection, that that joint statement was sent to Mr
Stanton’s solicitors by fax on December 15 1989. In the light of the matters
that he had agreed with Mr Kelsey, Mr Callaghan revised his draft report. He
included under section 7 (recommendations) a further paragraph:
7.03. An
alternative to this procedure [total underpinning] would be to remove the
influence of the partially underpinned section of the property by cutting a gap
between the beam and the piers. The beam would appear to have been constructed
directly onto the ground and therefore the beam will act similarly to a strip
footing which is similar to the original design of the foundations. This would
alleviate the hard spot of the underpinning and remove the differential
settlement aspect of the property and would alleviate the cracking to other
parts of the property where the stiff section has undoubtedly caused cracking
through the roof.
In para 7.07
of the draft report Mr Callaghan had estimated the cost of works for the full
underpinning of the property at £77,339 — that reflecting an indexed uplift
from the quotation obtained following the December 1987 specification. On
revision he added the following sentence:
7.07 … Should
the alternative [mentioned in 7.03] be accepted, thereby removing the influence
of the underpinning carried out in 1982 and returning the foundations of the
property to that that existed in 1981, the effective repairs would remove
clauses 2.04 to 2.11 and 2.15 from our specification [of December 1987] which
would effectively reduce the cost of the works to approximately £21,130
excluding VAT.
He concluded
with the following recommendation:
7.08. It is
our recommendation that either of the above schemes would return the property
to stability and full market value. The former being the only recommendation if
the original underpinning was stated to be remaining.
Mr Callaghan
completed the final version of his report and sent it to Mr Stanton on or about
December 18 1989 — although (in error) that final version continued to bear the
date of the original draft, December 11 1989. Between December 18 1989 and
January 8 1990 Mr Callaghan was overseas. He returned shortly before the day
fixed for the commencement of the trial of action 1986 S 447. It is not clear
whether (and if so when) Mr Callaghan’s final report was sent to the insurers
or their solicitors, but it is common ground that it is likely that experts’
reports were exchanged shortly before the trial was due to commence. In any
event, the insurers’ solicitors had received a copy of the joint statement from
Mr Kelsey and were aware of the agreed solution.
It was in
those circumstances that, shortly before the trial, the insurers increased the
amount that they had paid into court from £5,000 to £16,000. In the light of
the evidence that Mr Callaghan was proposing to give — as set out in his final
report and the agreed joint statement — Mr Stanton, no doubt with the benefit
of legal advice, took the view that there was no choice but to accept the
moneys in court. He did so, with costs down to December 31 1989, immediately
before the trial that would otherwise have commenced on January 11 1990.
Mr Stanton did
not use the £16,000 recovered in action 1986 S 447 for the purposes of
repairing the property, Espica Villa. After payment of the unrecovered costs of
the action (£11,300), there was little left out of that sum. In due course the
plaintiffs sold their property for £50,000. It is said that that was, in
effect, its site value. It is alleged that had the property been repaired by
total underpinning, it would have been worth £105,000.
The current
proceedings, which are brought by Mr Stanton and his wife as former co-owners of
Espica Villa against Mr Callaghan, Brian Callaghan & Associates and Brian
Callaghan & Partners, were commenced on July 13 1995. In para 11 of the
statement of claim it is alleged that the alternative solution proposed in para
7.03 of Mr Callaghan’s final report and in para 4 of the agreed joint statement
(for convenience referred to as ‘the gap solution’) was not feasible and would
not have been effective to return the property to stability. It is also alleged
in para 11 of the statement of claim that, in advising that the gap solution
was feasible and would be effective to return the property to stability and its
full market value, Mr Callaghan acted negligently and in breach of implied
terms in his contract of retainer. A defence to that statement of claim was
served on January 31 1996.
By a summons
issued on March 21 1997 the defendants applied to strike out the plaintiffs’
claim pursuant to Ord 18 r 19 RSC on the grounds that it disclosed no
reasonable cause of action; that it was scandalous, frivolous or vexatious; or
that it was otherwise an abuse of the process of the court. The basis of the
application is set out conveniently in para 24A of a proposed amended defence;
leave to serve which was sought under an alternate head in the summons of March
21 1997:
24A In the
yet further alternative, the defendants will contend that, in respect of each
and/or all of the individual reports and/or the meeting of experts on 14
December 1989 and/or the conference at Court on 11 January 1990, the first
defendant was acting in his capacity as expert adviser retained by the
plaintiffs in support of their claim against the Sun Alliance. In the premises,
the defendants are entitled to and claim immunity from suit in respect of
each/or all of the individual reports and/or the meeting of experts on 14
December 1989 and/or the conference at Court on 11 January 1990.
The
defendants’ summons came before Master Murray on July 11 1997. He refused the
application to strike out, gave the plaintiffs general leave to amend their statement
of claim and gave the defendants leave to amend the defence. The defendants
appealed to the judge. On August 21 1997 the plaintiffs amended the statement
of claim to allege (at para 7) that it was an implied term of Mr Callaghan’s
retainer that he would act in accordance with the plaintiffs’ lawful
instructions and within the limits of his authority. On the basis of that
implied term the amended statement of claim introduced, under the particulars
of negligence and breach of contract set out in para 11, a new allegation:
(A) At a
meeting between experts on the 14 December 1989 he [Mr Callaghan] wrongfully
agreed facts and an opinion with Mr Kelsey, the expert for the Sun Alliance,
and wrongfully conceded that the damage to the plaintiffs’ property could be
repaired without the need for full underpinning without first consulting the
plaintiffs or their legal advisers and without their actual authority or
consent. In the premises Mr Callaghan exceeded his authority and without the
plaintiffs’ agreement he wrongly conceded the major issue in the action.
When the
matter came before the judge on September 10 1997 it became clear that counsel
for the plaintiffs wished to advance their case on a rather wider front than
that pleaded; and, in particular, wished to allege that there were to be
implied as terms of the defendants’ retainer, in addition to those already
pleaded: (i) that, if Mr Callaghan changed his opinion as to the merits of the
claim being advanced by the plaintiffs (or otherwise so as to affect radically
their claim), he would first communicate that change of view to the plaintiffs
and obtain their express authority before disclosing it to the defendant; and
(ii) that his advice to the plaintiffs and any report prepared for the purposes
of disclosure to the insurers would be his own independent product uninfluenced
by the exigencies of litigation or any improper or extraneous considerations.
The second of those implied terms is the foundation for allegations of breach
of duty now made in subparas (B) and (C) in the particulars under para 11 of a
reamended statement of claim served on October 14 1997:
(B) He [Mr
Callaghan] was influenced in changing his opinion and agreeing the remedy by an
improper and/or extraneous consideration namely a statement by the said Mr
Kelsey that the insurers would not agree to pay for a scheme of full
underpinning because it would represent a degree of betterment falling outside
the terms of the insurance cover.
(C) He failed
to inform the plaintiffs alternatively the first plaintiff or their legal
advisers of the statement of Mr Kelsey referred to at (B) above which the
plaintiffs alternatively the first plaintiff avers was or was one of the facts,
reasons or assumptions upon which his radical change of opinion was based.
Although the
new allegations that subsequently found their way into the reamended statement
of claim had not been formally pleaded when the matter was before the judge, it
is plain from his judgment that he approached the issues before him on the
basis that those allegations were to be made. It has been agreed between
counsel that the proper course for this court to adopt in those circumstances
is to regard the plaintiffs’ case as that which is now pleaded in the reamended
statement of claim. On that basis, the plaintiffs’ allegations of breach of
duty may fairly be summarised as follows:
(1) That Mr
Callaghan’s advice that the gap solution would resolve the subsidence problem
and restore the property to its full market value was wrong (subpara (a) in the
particulars under para 11) and was the result of negligence in a number of
respects particularised in subparas (b) to (h).
(2) If
(contrary to the plaintiffs’ primary case) the gap solution was a viable
solution, the defendant was negligent in failing to point that out at any time
before delivery of his final report on or about December 18 1989 (subparas (i)
and (j) in the particulars under para 11). Further, he failed to provide any
accurate or adequate costing of the works needed to effect the gap solution
(subpara (l) in those particulars).
(3) If, as Mr
Callaghan asserts — see para 10 of his affidavit sworn on February 11 1998 —
and the plaintiffs now accept, the gap solution first occurred to him in the
course of his meeting with Mr Kelsey on December 14 1989, then: (i) he was
wrong to allow himself to be influenced by a statement, said to have been made
by Mr Kelsey at that meeting, that the insurers would not agree to pay for a
scheme of full underpinning because it would represent a degree of betterment
falling outside the terms of the insurance cover; and (ii) he was in breach of
duty in failing to inform the plaintiffs or their solicitors of that statement
before taking it into account (subparas (B) and (C) in the particulars under
para 11).
(4) On the
basis that, in the course of the meeting on December 14 1989, Mr Callaghan did,
properly and on material that he was entitled to take into account, form the
view that the gap solution was viable he was in breach of duty in communicating
that view to Mr Kelsey without having first obtained the plaintiffs’ express
authority or consent (subpara (A) in the particulars under para 11).
(5) Mr
Callaghan was in breach of duty in going abroad on December 18 1989 without
informing the plaintiffs’ solicitors or leaving a contact number with them —
thereby (so it is alleged) making himself unavailable to explain his ideas in
respect of the gap solution until the day of the trial (subpara (k) in the
particulars under para 11).
The judge held
that there was an essential distinction between alleged negligence on the part
of the expert acting qua expert witness and alleged negligence on the
part of the expert acting qua adviser to the party instructing him. In
the first category of case there will be immunity from suit on the grounds of
public policy; in the latter there will not. He accepted that Mr Callaghan was
acting in both capacities. He went on to say this:
When entering
into the agreement of December 14 he [Mr Callaghan] was acting as the
plaintiffs’ expert witness. Prima facie, whatever agreement he entered
into in the course of that meeting was effected in that capacity, and he would
be immune from suit in respect of alleged negligence in agreeing the terms that
he did.
Nevertheless,
he declined to strike out the statement of claim. He held that it was arguable
that, before entering into the agreement with Mr Kelsey on December 14 1989, Mr
Callaghan qua adviser ought to have notified the plaintiffs that he was
proposing to agree something that was ‘radically inconsistent’ with the case
thus far advanced. He held, also, that it was arguable that the immunity
afforded to witnesses might not extend to negligence that consisted of taking
into account extraneous matters not within the province of the expert. In effect,
therefore, the judge was satisfied that the plaintiffs had an arguable case
under the heads that I have identified as (3) and (4) above; although, as he
pointed out, he was not invited to (and did not) undertake the exercise of
distinguishing between the various pleaded allegations with a view to striking
out some and not others.
In relation to
the heads of claim that the judge held to be arguable — which I have identified
as (3) and (4) above and which have emerged as subparas (A), (B) and (C) in
para 11 of the reamended statement of claim — the allegations, as pleaded, are
that Mr Callaghan acted in breach of the instructions to be implied in his
retainer. The allegations, properly understood, are not allegations of
negligence; they are allegations that Mr Callaghan went beyond, or acted
inconsistently with, what he had been instructed to do. Accordingly, as it
seems to me, the first question to consider in relation to these heads of claim
is whether the allegations of breach of duty are capable of being made out.
Unless there is a prima facie case that (absent negligence) Mr Callaghan
was in breach of his instructions in agreeing, at the meeting on December 14
1989, that the gap solution was viable, the question of immunity does not arise
in relation to these heads of claim. They fail on the basis that no breach of
duty can be made out.
In this
context it is essential to identify what were Mr Callaghan’s instructions; both
generally in relation to action 1986 S 447 and, in particular, in relation to
the meeting on December 14 1989. The allegation, in para 7 of the reamended
statement of claim, is that Mr Callaghan agreed ‘to provide technical and
expert advice in support of the plaintiffs’ claim’. The claim in action 1986 S
447 — as it appeared from the statement of claim endorsed on the writ in that
action — may be summarised as follows: (i) that in or about 1980 the
plaintiffs’ property had suffered subsidence damage caused by trees growing on
the neighbouring land; (ii) that the works of partial underpinning that had
been carried out in 1982 had failed to remedy that damage; and (iii) that
further works (identified in Mr Callaghan’s report of March 5 1984) were
required. The issues in relation to which Mr Callaghan could provide expert
advice were: (i) whether there was a continuing liability to subsidence at the
plaintiffs’ property; if so (ii) what was the cause; and (iii) what further
remedial works were required. Those were the matters on which he was to give
evidence at the trial that was to commence on January 11 1990. The instructions
in the letter of December 7 1989 from Mr Stanton’s solicitors — to which I have
already referred — were to meet Mr Kelsey ‘with a view to agreeing as much as
possible and making a list of items agreed and those areas where a dispute
really does exist’. There was nothing in those instructions that required Mr
Callaghan to seek further authority from the solicitors before reaching
agreement with Mr Kelsey as to the matters on which there would be no
evidential dispute between them. The purpose of the meeting, as Mr Callaghan
had been told, was to narrow the issues at trial on which he and Mr Kelsey
would be in dispute. That was to be done by agreeing as much as possible. The
outcome of the meeting was to be recorded in writing, in a form to which they
could both assent.
The agreed
joint statement that the two experts signed following their meeting on December
14 1989 addressed the issues in relation to which expert evidence was to be
given at the trial. It records that Mr Callaghan and Mr Kelsey were in
agreement: (i) that there was some continuing foundation movement; and (ii)
that the probable cause was the differential arising from partial underpinning.
It also records agreement as to a remedy: the gap solution would avoid the
problem associated with the differential arising from partial underpinning. It
seems to me that (absent negligence) Mr Callaghan, in agreeing the joint
statement, was doing just what he had been instructed to do. I can see no basis
upon which he can be said to have acted in breach of his retainer if, in order
to give effect to instructions to agree as much as possible, he sought a
solution that took into account the fact that, as stated by Mr Kelsey, the
insurers would not agree to pay for a scheme of full underpinning because it
would represent a degree of betterment. It was obviously sensible, in those
circumstances, to consider whether there was some other equally viable scheme
that the insurers would accept. If there was, and if that was a scheme on which
he and Mr Kelsey could agree, it was appropriate — indeed necessary — to say
so.
For these
reasons I am satisfied that the judge was wrong to hold that the heads of claim
pleaded under subparas (A), (B) and (C) in the particulars under para 11 of the
reamended statement of claim — identified as (3) and (4) above — were arguable.
In my view (absent negligence) those allegations of breach of duty cannot be
sustained. In reaching that conclusion I do not find it necessary to rely on
any immunity from suit that might arise from the position of Mr Callaghan as a
potential witness. I prefer to express no view on the question of whether any
such immunity would extend to a claim based on the failure of an expert to act
within the confines of his instructions. In my view, that question does not
arise on the facts in the present case.
At the hearing
of the appeal counsel for respondents (the plaintiffs in the action) made it
clear that the allegations pleaded under subparas (i), (j) and (l) in the
particulars under para 11 of the reamended statement of claim would not be
pursued. It is unnecessary, therefore, to consider further the head of claim
that I have identified as (2) above.
I can deal
shortly with the allegation pleaded under subpara (k) in the particulars under
para 11 of the reamended statement of claim — identified as (5) above. It is
said that Mr Callaghan was in breach of duty in going on holiday after
submitting his report on December 18 1989 without informing the plaintiffs’ solicitors
or leaving a contact number with them — thereby (so it is alleged) depriving
the plaintiffs of the opportunity to change their expert before trial. In my
view, the allegation is misconceived. The report delivered on December 18 1989
made clear what Mr Callaghan’s evidence would be if he were called as a witness
at trial. It is not alleged that he could have been persuaded to alter the
evidence that he proposed to give by representations made on behalf of the
plaintiffs or their solicitors. In any event the plaintiffs would have been ill
advised to call Mr Callaghan to give evidence that differed from that contained
in the agreed joint statement, even if he were persuaded that the views
recorded in that joint statement could no longer be supported. In practice,
therefore, once they knew of the
plaintiffs were faced with the choice of accepting his advice or instructing
another expert. There is no suggestion that they considered instructing another
expert; but, if they had been minded to do so, they were not prevented from
taking that course by the fact that Mr Callaghan was on holiday. The claim
based on the allegation in subpara (k) of the particulars under para 11 in the
reamended statement of claim is not capable of being sustained.
I have
indicated that the plaintiffs would have been ill advised to call Mr Callaghan
to give evidence that differed from that in the agreed joint statement, even if
he were persuaded by representations made to him between December 14 1989 and
January 11 1990 that the views recorded in that joint statement could no longer
be supported. That reflects my view that, if he were called as a witness, the
agreed joint statement could have been put to him. We were referred in argument
to the decisions of Judge Fox-Andrews QC in Murray Pipework Ltd v UIE
Scotland Ltd (1990) 6 Const LJ 56 and Judge Newey QC in Richard Roberts
Holdings Ltd v Douglas Smith Stimson Partnership No 3 (1990)
6 Const LJ 70. This is not the occasion to consider what the status of the
agreed joint statement would have been if the action had proceeded to a trial
at which Mr Callaghan were not called as a witness. It is not necessary to
decide whether or not, in those circumstances, the agreed statement could have
been relied upon by the insurers. What is beyond doubt, in my view, is that the
statement could have been put to Mr Callaghan or to Mr Kelsey if either had
sought to depart from the views recorded in it. To hold otherwise would be to
deprive a joint statement agreed between experts of the purpose that it was
obviously intended to serve.
I turn,
therefore, to the plaintiffs’ primary claim: that Mr Callaghan’s advice that
the gap solution would resolve the subsidence problem and restore the property
to its full market value was wrong, as pleaded in subpara (a) in the
particulars under para 11 in the statement of claim. On this application to
strike out, the court must assume that that is an allegation that could be
established at trial. In fairness to Mr Callaghan, however, it is appropriate
to observe: (i) that the gap solution has not been attempted and so cannot be
shown to have failed in practice; and (ii) that the allegation that the gap
solution was not viable is strenuously denied. Further, it would not, of
course, be sufficient for the plaintiffs to establish at trial that the gap
solution was not viable. It would be necessary for them to establish that the
contrary view, which Mr Callaghan adopted on December 14 1989, was reached as
the result of negligence, as pleaded in subparas (b) to (h) in the particulars
under para 11 of the statement of claim. Negligence, in this context, connotes
something outside the range of reasonable professional judgment. There are
formidable hurdles for the plaintiffs to overcome if this action proceeds. But
the court must approach this application on the assumption that the plaintiffs
may succeed in overcoming those hurdles at a trial. It is not relevant to
speculate whether that assumption might prove ill-founded.
The
proposition that the defendants can escape liability for negligence on the
ground that Mr Callaghan’s advice as to the feasibility of the gap solution as
a remedy for subsidence was given in the context of litigation requires careful
scrutiny. Mr Callaghan was a professional man who undertook, for reward, to
provide advice within his expertise. The expectation of those who engaged him
must have been that he would exercise the care and attention appropriate to
what he was engaged to do. I would find it difficult to accept that Mr
Callaghan did not share that expectation. But for the fact that he was a
potential witness in pending proceedings, there could be no doubt that the law
would provide a remedy if that expectation were not fulfilled. But, equally,
there can be no doubt that the law does recognise immunity from suit in
relation to certain things done or omitted to be done in the course of
preparing for or taking part in a trial. It does so on the basis of a
supervening public interest that transcends the need to provide a remedy in the
individual case. The question on this appeal is whether the facts, as pleaded,
fall within that principle.
The immunity
of a witness from suit in respect of evidence given in court was described by Simon
Brown LJ in Silcott v Commissioner of Police for the Metropolis
(1996) 8 Admin LR 633 at p636, as a fundamental rule of law. The origins of the
rule were traced in the judgment of Chief Baron Kelly in Dawkins v Lord
Rokeby (1873) 8 QB 255 at pp263–265. He concluded at p265 that:
Upon all
these authorities it may now be taken to be settled law, that no action lies
against a witness upon evidence given before any court or tribunal constitutes
according to law.
The basis of
the immunity in respect of evidence given in court was explained by the Lord
Chancellor, Lord Halsbury, in Watson v McEwan [1905] AC 480 at
p486:
the conduct
of legal procedure by courts of justice, with the necessity of compelling
witnesses to attend, involves as one of the necessities of the administration
of justice the immunity of witnesses from actions being brought against them in
respect of evidence they have given.
In Watson
v McEwan the claim was for damages for slander in respect of evidence
given by the appellant, a doctor, in the course of separation proceedings
brought by the respondent against her husband. Two questions arose: (i) whether
the appellant could be liable for evidence given in court; and (ii) whether he
could be liable for the same or similar information previously given to the
husband’s legal adviser. Lord Halsbury had no doubt as to the first question:
no proceedings would lie for evidence given in court. He observed that the
second question was both novel and ingenious. Differing from the courts below,
he answered it in these terms at pp486–487:
It appears to
me that the privilege which surrounds the evidence actually given in a Court of
justice necessarily involves the same privilege in the case of making a
statement to a solicitor and other persons who are engaged in the conduct of
proceedings in Courts of justice when what is intended to be stated in a Court
of justice is narrated to them — that is, to the solicitor or writer to the
Signet. If it were otherwise, I think what one of the learned counsel has with
great cogency pointed out would apply — that from time to time in these various
efforts which have been made to make actual witnesses responsible in the shape
of an action against them for the evidence they have given, the difficulty in
the way of those who were bringing the action would have been removed at once
by saying, ‘I do not bring the action against you for what you said in the
witness box, but I bring the action against you for what you told the solicitor
you were about to say in the witness box.’ If that could be done the object for
which the privilege exists is gone, because then no witness could be called; no
one would know whether what he was going to say was relevant to question in
debate between the parties. A witness would only have to say, ‘I shall not tell
you anything; I may have an action brought against me to-morrow if I do;
therefore I shall not give you any information at all.’ It is very obvious that
the public policy which renders the protection of witnesses necessary for the
administration of justice must as a necessary consequence involve that which is
a step towards and is part of the administration of justice — namely, the
preliminary examination of witnesses to find out what they can prove. It may be
that to some extent it seems to impose a hardship, but after all the hardship
is not to be compared with that which would arise if it were impossible to
administer justice, because people would be afraid to give their testimony.
It is clear
that Lord Halsbury took the view that, if full effect was to be given to the
requirement of public policy that witnesses should not be deterred from giving
evidence by a fear that they might be sued by a disappointed party, then the
immunity must extend to the making of a witness statement as a step preliminary
to the giving of evidence in court.
That rationale
was adopted by Salmon J in Marrinan v Vibart [1963] 1 QB 234 when
applying the principle to reports made by police officers to the Director of
Public Prosecutions. He said this at p237:
It has been
well settled law for generations — certainly since Lord Mansfield’s time — that
witnesses enjoy absolute immunity from actions being brought against them in
respect of any evidence they may give in a court of justice. 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.
His decision
was upheld by the Court of Appeal at [1963] 1 QB 528.
The need for
immunity on the basis explained in Watson v McEwan and in Marrinan
v Vibart was relied upon by Drake J in Evans v London Hospital
Medical College (University of London) [1981] 1 WLR 184 at p191F. He was
addressing the question whether, and if so how far, the absolute immunity in
respect of things said or done in the preparation of witness statements or
reports, recognised in those decisions, extended to cover the acts or omissions
of a witness or potential witness during the stage when they were collecting or
considering material with a view to its possible use in criminal
proceedings. He held at p191F–G that:
The immunity
given to a witness or potential witness is because:
‘… the
administration of justice would be greatly impeded if witnesses were to be in
fear that … persons against whom they gave evidence might subsequently involve
them in costly litigation’: see per Salmon J in Marrinan v Vibart
[1963] 1 QB 234, 237.
If this object
is to be achieved I think it essential that the immunity given to a witness
should also extend to cover statements he makes prior to the issue of a writ or
commencement of a prosecution, provided that the statement is made for the
purpose of a possible action or prosecution and at a time when a possible
action or prosecution is being considered. In a large number of criminal cases
the police have collected statements from witnesses before anyone is charged
with an offence; indeed sometimes before it is known whether or not any
criminal offence has been committed.
If immunity
did not extend to such statements it would mean that the immunity attaching to
the giving of evidence in court or the formal statements made in preparation
for the court hearing could easily be outflanked and rendered of little use.
Lord
Browne-Wilkinson put the immunity on the same basis in X (Minors) v Bedfordshire
County Council [1995] 2 AC 633 at p754G–H:
The immunity
of witnesses from any action founded on their evidence was originally designed
to ensure in the public interest that witnesses would not, through fear of
later civil proceedings, be inhibited from giving frank evidence in court. This
immunity was widened by this House in Watson v McEwan; Watson
v Jones [1905] AC 480 to cover information and reports given by a
potential witness to the legal advisers of a party for the purpose of preparing
a proof.
Lord
Browne-Wilkinson then set out the passage from the judgment of Drake J in Evans
v London Hospital to which I have just referred, and went on at [1995] 2
AC 633 at p755E:
I find the
reasoning of Drake J compelling at least in relation to the investigation and
preparation of evidence in criminal proceedings. In my judgment exactly similar
considerations apply where, in the performance of a public duty, the local
authority is investigating whether or not there is evidence on which to bring
proceedings for the protection of the child from abuse, such abuse frequently
being a criminal offence.
There is, if I
may say so, no difficulty in recognising the need for immunity in relation to
the investigation and preparation of evidence in criminal proceedings — or in
child abuse cases — in order to ensure that potential witnesses are not
deterred from coming forward. For my part, however, I find it much more
difficult to recognise an immunity founded on the need to ensure that witnesses
are not deterred from giving evidence by the possibility of vexatious suits in
a case where the witness is a professional man who has agreed, for reward, to
give evidence in support of his opinion on matters within his own expertise — a
fortiori, where the immunity is relied upon to protect the witness from
suit by his own client, towards whom, prima facie, he owes contractual
duties to be careful in relation to the advice that he gives. I think that
there is much force in the observation of Mr Simon Tuckey QC, when sitting as a
judge of the Queen’s Bench Division in Palmer v Durnford Ford
[1992] QB 483 at p488D–E:
I do not
think that liability for failure to give careful advice to his client should
inhibit an expert from giving truthful and fair evidence in court.
It is
important to keep in mind that expert witnesses have the safeguard, in common
with other professional men, that they will not be held liable for negligent
advice unless that advice is such as no reasonable professional, competent in
the field and acting reasonably, could give. I find it difficult to believe
that the pool of those who hold themselves out as ready to act as expert
witnesses in civil cases, on terms as to remuneration that they must find
acceptable, would dry up if expert witnesses could be held liable to those by
whom they are instructed for failing to take proper care in reaching the opinions
that they advance. Indeed, I would find it a matter of some surprise if expert
witnesses offer their services at present on the basis that they cannot be held
liable if their advice is negligent.
It is
important, also, to keep in mind that immunity from suit — where liability
would otherwise lie — constitutes an exception to the general law. The
exception must be justified on some ground of public policy. The justification
requires careful examination. If, as I think, immunity from suit in respect of
negligent advice cannot be justified, in the case of a witness who has held
himself out as ready to give expert evidence in the course of carrying on his
profession, on the ground that, without protection against vexatious claims,
the pool of experts willing to testify would dry up, the immunity cannot be
recognised unless some more satisfactory basis for departing from the general
law on the ground of public policy can be found. It seems to me that the analysis,
in the speeches in the House of Lords in Rondel v Worsley [1969]
1 AC 191 and in Saif Ali v Sydney Mitchell & Co [1980] AC
198, of the public policy underlying advocates’ immunity offers assistance.
In Rondel
v Worsley the House had to consider immunity in respect of a barrister’s
conduct in court in the context of a criminal prosecution of his client. It is,
I think, sufficient for present purposes to take the decision from the headnote
at pp191G–192B:
a barrister
was immune from an action for negligence at the suit of a client in respect of
his conduct and management of a cause in court and the preliminary work
connected therewith such as the drawing of pleadings. That immunity was not
based on the absence of contract between barrister and client but on public
policy and long usage in that (a) the administration of justice required that a
barrister should be able to carry out his duty to the court fearlessly and
independently; (b) actions for negligence against barristers would make the
retrying of the original actions inevitable and so prolong litigation, contrary
to the public interest; and (c) a barrister was obliged to accept any client,
however difficult, who sought his services…
It is, of
course, self-evident that the third of those grounds of public policy has no
relevance to the position of an expert witness vis-à-vis his own client
in a construction dispute. The expert can choose the clients from whom he is
willing to accept instructions. There may be circumstances in which the expert
is obliged to accept a nomination from his professional body to assist the
court; but that is not a factor in this case.
Shortly after
the decision in Rondel v Worsley (supra), the second of
the grounds of public policy identified in that case — the need to avoid a
multiplicity of actions — was said by Lord Wilberforce in Roy v Prior
[1971] AC 470 at p480D, to be one of the traditional reasons underlying witness
immunity:
The reasons
why immunity is traditionally (and for this purpose I accept the tradition) conferred
upon witnesses in respect of evidence given in court, are in order that they
may give their evidence fearlessly and to avoid a multiplicity of actions in
which the value or truth of their evidence would be tried over again.
(My
emphasis.)
That passage
was adopted by Mr Simon Tuckey QC in Palmer v Durnford Ford
[1992] QB 483 at p487B, and by Simon Brown LJ in Silcott v Commissioner
of Police for the Metropolis (1996) 8 Admin LR 633 at p637E.
In Rondel
v Worsley (supra) the question of liability for work done out of
court did not arise on the facts. As was pointed out by Lord Diplock in Saif
Ali v Sydney Mitchell & Co (supra), at p217H the four members of
the House who expressed opinions that a barrister would be liable for work done
out of court ‘were not of one mind’ as to
negligence and what work did not. It was that question that the House had to
consider further in Saif Ali itself.
In Saif Ali
the plaintiff claimed damages for professional negligence against the defendant
solicitors in respect of their failure to join a party (against whom claims had
since become statute-barred) in proceedings arising out of a motor accident.
The solicitors issued a third-party notice against the barrister who had
settled the writ and statement of claim in those proceedings and who had
advised against joinder of the additional party. The barrister sought to have
the third-party notice struck out on the ground that he was immune from suit in
respect of advice given in connection with the conduct of the case. The House
of Lords had to consider whether advocates’ immunity extended to the factual
situation alleged. As Lord Wilberforce pointed out, [1980] AC 198 at p212, that
required a reconsideration of Rondel v Worsley [1969] 1 AC 191.
He referred to the need to avoid a multiplicity of actions in the following
passage at pp214H–215A:
immunity from
an action … depends upon public policy. In fixing its boundary, account must be
taken of the counter policy that a wrong ought not to be without a remedy.
Furthermore, if the principle is invoked that it is against public policy to
allow issues previously tried (between the client and his adversary) to be
relitigated between client and barrister, it may be relevant to ask why this
principle should extend to a case in which by the barrister’s (assumed) fault,
the case never came to trial at all. These two considerations show that the
area of immunity must be cautiously defined.
Lord Diplock
was not persuaded that either the first or the third of the grounds in Rondel
v Worsley (supra) provided a satisfactory basis for holding that
a barrister ought to be completely immune from liability for negligence for
what he does in court in conducting criminal or civil proceedings — ‘let alone
for anything that he does outside court in advising about litigation whether
contemplated or pending or in settling documents for use in litigation’. He
went on to say, [1980] AC 198 at p221H:
There are,
however, two additional grounds referred to in some of the speeches in Rondel
v Worsley [1969] 1 AC 191 which can be used to supplement those reasons
so far as they protect a barrister from liability in respect of the way in
which he has conducted proceedings in court … ; save to a very limited
extent, however, neither of them would apply to work done out of court.
(My
emphasis.)
The first of
those grounds is that the barrister’s immunity from liability for what he does
in court is part of the general immunity from civil liability that attaches to
all persons in respect of their participation in proceedings before a court of
justice: judges, court officials, witnesses, parties, counsel and solicitors
alike. That immunity is based on public policy, designed ‘to ensure that trials
are conducted without avoidable stress and tensions of alarm and fear in those
who have a part to play in them’ (ibid, at p222A–B). The second is the
need to avoid a multiplicity of trials — as Lord Diplock explained at
pp222D–223D. But it is relevant to note that Lord Diplock went on to say at
p223E–F:
A similar
objection [the need to avoid a multiplicity of trials] … would not apply in
cases where an action has been dismissed or judgment entered without a
contested hearing, and there is no possibility of restoring the action and
proceeding to a trial. If the dismissal or the entry of judgment was a
consequence of the negligence of the legal advisers of a party to the action, a
claim in negligence against the legal advisers at fault does not involve any
allegation that the order of the court which dismissed the action or entered
judgment was wrong.
Without the
support of the two additional grounds of public interest that he identified,
Lord Diplock found no sufficient reason for extending the immunity to anything
that a barrister does out of court; ‘save for a limited exception analogous to
the extension of a witness’s protection in respect of evidence which he gives
in court to statements made by him to the client and his solicitor for the
purpose of preparing the witness’s proof’ (ibid, at p224B). It is not
clear whether either Lord Wilberforce or Lord Diplock regarded that exception
as extending to cases in which the evidence was never actually given in court;
because, for example, there was no contested trial. But, if it does so extend,
it cannot be justified by recourse to the need to avoid a multiplicity of
trials — for the reasons that they both set out.
Lord Salmon
rejected emphatically the proposition that there was any general immunity
extending to pre-trial advice. He said at p230B–C:
I cannot,
however, understand how any aspect of public policy could possibly confer
immunity on a barrister in a case such as the present should he negligently
fail to join the correct persons or to advise that they should be joined as
defendants; or for that matter should he negligently advise that the action
must be discontinued. It seems plain to me that there could be no possibility
of a conflict between his duty to advise his client with reasonable care and
skill and his duty to the public and the courts. I do not see how public policy
can come into this picture.
Nevertheless,
Lord Salmon was prepared to recognise that there were cases in which the advice
given out of court was so closely connected with conduct of the case in court
that it should be covered by the same immunity — see p231G–H:
It would be
absurd if counsel who is immune from an action in negligence for refusing in
court to call a witness could be sued in negligence for advising out of court
that the witness should not be called. If he could be sued for giving such
advice it would make a travesty of the general immunity from suit for anything
said or done in court and it is well settled that any device to circumvent this
immunity cannot succeed: see eg, Marrinan v Vibart [1963] 1 QB
234; [1963] 1 QB 528.
Each of the
three members of the House who formed the majority — Lord Wilberforce, Lord
Diplock and Lord Salmon — adopted, with approval, the test posed by McCarthy P,
sitting in the Court of Appeal in New Zealand in Rees v Sinclair
[1974] 1 NZLR 180 at p187 lines 17–25:
Each piece of
before-trial work should, however, be tested against the one rule; that the
protection exists only where the particular work is so intimately connected
with the conduct of the cause in Court that it can fairly be said to be a
preliminary decision affecting the way that cause is to be conducted when it
comes to a hearing. The protection should not be given any wider application
than is absolutely necessary in the interests of the administration of justice,
and that is why I would not be prepared to include anything which does not come
within the test I have stated.
On the basis
of that test, the House of Lords held, by a majority, that the facts alleged in
Saif Ali [1980] AC 198 did not fall within the immunity. The other two
members of the House — Lord Russell and Lord Keith — took a wider view of the
scope of the immunity.
Evans v London Hospital Medical College (University of London)
[1981] 1 WLR 184 was decided shortly after Saif Ali. Drake J considered
in Evans whether the scope of the decision in Marrinan v Vibart
[1963] 1 QB 234, [1963] 1 QB 528 had been narrowed by the decision of the House
of Lords in Saif Ali. He referred to the test in Rees v Sinclair,
which had been adopted by the majority. He observed that, on that test, the
immunity would not cover all of the negligence alleged against the defendants
in the action with which he was concerned. He went on, ibid at p191D–F:
But although
the immunity attaching to barristers exists for reasons of public policy, as
does that attaching to witnesses, I think it clear that it is not identical.
The immunity enjoyed by a witness does in fact protect everyone engaged in
proceedings in court — not merely the witnesses, but the judge, counsel, jurors
and parties: see Lord Wilberforce in Saif Ali v Sydney Mitchell &
Co [1980] AC 198, 214 and per Lord Diplock at p222. The barrister’s
immunity from action in respect of his conduct of the litigation is a separate
even if in some ways related branch of immunity. Public policy gives immunity
to the barrister so that he may be free, without any fear of civil action, in
his conduct of the litigation: it is not, however, right that he should be
given any wider immunity than is necessary for that purpose.
That passage
immediately precedes the passage to which I have already referred, [1981] 1 WLR
184 at p191F–H, in which Drake J
to statements made prior to the issue of a writ or the commencement of a
prosecution. It is pertinent to note that, when approving Drake J’s reasoning
in Evans, Lord Browne-Wilkinson was careful to limit his approbation to
the context with which he was concerned; that is to say, the investigation and
preparation of evidence in criminal proceedings and the investigation by a
local authority, in performance of a public duty, of allegations of child
abuse. In X (Minors) v Bedfordshire County Council [1995] 2 AC
633 at p755F, Lord Browne-Wilkinson said:
I express no
view as to the position in relation to ordinary civil proceedings, but nothing
I have said casts any doubt on the decision of Mr Simon Tuckey QC in Palmer
v Durnford Ford [1992] QB 483.
It is to the
decision in Palmer v Durnford Ford [1992] QB483 that I now turn.
It is convenient to take a summary of the facts alleged in the statement of
claim from the judgment, at pp485H–486E:
The
plaintiffs are haulage contractors. In September 1978 they bought a new lorry
tractor unit from Leyland Vehicles Ltd. It broke down in May 1981 and its
engine was repaired by Arlington Motor Company Ltd. In July 1981 the plaintiff
sought legal advice from the solicitors as to whether they could recover the
cost of the repair and their consequential losses from Leyland. In January
1982, after assurances by him that he had the necessary qualifications and
experience, the solicitors retained the expert, who is an engineer, to prepare
a report on the cause of the breakdown of the engine. However, before he had
reported the engine again broke down and the plaintiff’s instructions to the
solicitors and their instructions to the expert were extended to include this
second breakdown. After inspecting the engine the expert produced a written
report dated 12 February 1982 which advised that claims against Leyland and
Arlington were justified. Based on this report and counsel’s advice the
plaintiffs obtained a full legal aid certificate to take proceedings which were
issued in January 1983. In due course the date for the trial was fixed for 7
October 1985. As the expert was to be called to give evidence in support of the
plaintiffs’ claim his written report was disclosed to Leyland and Arlington.
Leyland and Arlington then disclosed their own experts’ reports. Having seen
these reports the expert advised that he would have difficulty in supporting
the claim against Leyland but that the claim against Arlington was still
justified including a claim that when they had repaired the engine Arlington
had unnecessarily replaced certain parts. On 8 October 1985, after the first
plaintiff and the expert had given evidence, the plaintiffs abandoned their
claims and by consent judgment was given for Leyland and Arlington with costs.
It was alleged
against the expert (inter alia) that he should have advised from the
outset that no claim against Leyland was justified and that he persisted in an
obviously wrong view that Arlington had unnecessarily replaced parts. The
expert contended that he was immune from suit because he was at all times
acting in the course of preparing evidence for a claim or possible claim. That
contention required the judge to consider the circumstances in which the law
will recognise immunity from suit in relation to advice given to a party who
has retained him by an expert who is to be called by that party as a witness at
a pending trial.
The judge
identified the principles in the following passage, [1992] QB 483 at p487A–C:
It is well
settled that witnesses in either civil or criminal proceedings enjoy immunity
from any form of civil action in respect of evidence given during those
proceedings. The reason for this immunity is so that witnesses may give their
evidence fearlessly and to avoid a multiplicity of actions in which the value
or truth of their evidence would be tried over again: see Roy v Prior
[1971] AC 470, 480. This immunity has also been held to apply to the
preparation of the evidence which is to be given in court. Thus in Marrinan
v Vibart [1963] 1 QB 528, where the plaintiffs sought to sue police
officers who had prepared a report for the Director of Public Prosecutions and
appeared as witnesses against him at his criminal trial, the court said, at
p535, that the immunity ‘protects witnesses in their evidence before the court
and in the preparation of the evidence which is to be so given.’
After
referring to the decision of Drake J in Evans v London Hospital
Medical College (University of London) [1981] 1 WLR 184, the judge went on
at p488A–F:
In this case
the expert was retained for reward by the plaintiffs to advise them as to
whether from an engineering point of view a civil claim against Leyland and/or
Arlington was justified. The previous cases have been concerned with witnesses
who have given or were to give evidence, usually in criminal proceedings,
‘against’ the plaintiffs. There is no English authority dealing with the
position of an expert in circumstances such as those which exist in this case.
Nor has this point been considered, as far as counsel have been able to
discover, in any other common law jurisdiction…
I approach
the matter by noting first that experts are usually liable to their clients for
advice given in breach of their contractual duty of care and secondly that the
immunity is based upon public policy and should therefore only be conferred
where it is absolutely necessary to do so. Thus, prima facie, the
immunity should only be given where to deny it would mean that expert witnesses
would be inhibited from giving truthful and fair evidence in court. Generally I
do not think that liability for failure to give careful advice to his client
should inhibit an expert from giving truthful and fair evidence in court…
I can see no
good reason why an expert should not be liable for the advice which he gives to
his clients as to the merits of the claim, particularly if proceedings have not
been started, and a fortiori as to whether he is qualified to advise at
all. Since both these allegations are made in this case I do not think that the
decision [of the District Judge] to strike out the whole of the statement of
claim can be justified.
Sir Thomas
Bingham MR expressly approved that decision in his judgment in M (a Minor) v
Newham London Borough Council, reported with four related appeals sub
nom X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at
p661G; and Lord Browne-Wilkinson, in the House of Lords in that case at p755F,
made it clear that, although differing from the Court of Appeal on the scope of
witness immunity, nothing that he had said was intended to cast any doubt on
the decision in Palmer. For present purposes, however, the importance of
Palmer v Durnford Ford [1992] QB 483 lies not in the actual
decision itself but in what the judge went on to say as to the circumstances in
which witness immunity could or could not be relied upon by experts. He said at
p488F–H:
The problem
is where to draw the line given that there is immunity for evidence given in
court and it must extend to the preparation of such evidence to avoid the
immunity being outflanked and rendered of little use. This problem was
considered by the House of Lords in Saif Ali v Sidney Mitchell &
Co [1980] AC 198 in the analogous but not identical situation of the
advocate’s immunity from suit for what he does in court. In that case the House
decided that the immunity extended to some pre-trial work but only where the
particular work was so intimately connected with the conduct of the case in
court that it could fairly be said to be a preliminary decision affecting the
way that the case was to be conducted when it came to a hearing.
I think a
similar approach could be adopted in the case of an expert. Thus, the immunity
would only extend to what could fairly be said to be preliminary to his giving
evidence in court judged perhaps by the principal purpose for which the work
was done. So the production or approval of a report for the purposes of
disclosure to the other side would be immune but work done for the principle
purpose of advising the client would not. Each case would depend upon its own
facts with the court concerned to protect the expert from liability for the
evidence which he gave in court and the work principally and proximately
leading thereto.
The approach
suggested by Mr Simon Tuckey QC in Palmer v Durnford Ford [1992]
QB 483 was followed by Holland J in Landall v Dennis Faulkner &
Alsop [1994] 5 Med LR 268. The third defendant, a consultant orthopaedic
surgeon, had provided a medical report in connection with proceedings brought
by the plaintiff in respect of a back injury suffered in a road accident. Those
proceedings were settled at the door of the court. The medical report contained
the consultant’s opinion that the appropriate operation for the relief of the
plaintiff’s symptoms would be a spinal fusion; and that that operation would
give a very good chance of relief of all his symptoms. Following the
settlement, the operation recommended was carried out, but it failed to
ameliorate the plaintiff’s back symptoms. The plaintiff sought, in a fresh
action against the barrister, the solicitors and the consultant who had advised
him in the first action, damages on the basis that he had received negligent
advice as to the settlement of the first action. The consultant claimed
immunity from suit in respect of the advice
in connection with litigation in the first set of proceedings. It is relevant,
in the context of the present case, to note the opening words of the expert’s
report of February 10 1987: ‘In accordance with your instructions, I have
spoken to Professor O’Connor and we are in agreement that…’. That issue came
before Holland J on an application to strike out the claim. It was argued on
behalf of the plaintiff that the consultant had a dual role: not only was he an
expert for the purposes of litigation, but he was also a medical adviser to the
plaintiff. So, it was argued, the impugned advice was as much for the purpose
of advising the plaintiff as a patient as for disclosure to the other side in
litigation. Holland J rejected that submission. He held that the circumstances
in which the report was prepared on February 10 1987 made it plain that the
report constituted: ‘pre-trial work … so intimately connected with the conduct
of the case in court that it could fairly be said to be a preliminary decision
affecting the way that the case was to be conducted when it came to a hearing’.
Applying the test posed in Palmer he struck out the claim against the
consultant. If that were a correct conclusion to reach on the facts of that
case, then the claim in negligence in the present case ought to be struck out
also.
Holland J’s
decision in Landall v Dennis Faulkner & Alsop must be
reviewed in the light of observations in this court in M (a Minor) v Newham
London Borough Council [1995] 2 AC 633. In the Newham appeal, the
child had been seen by a psychiatrist engaged to advise the local authority in
relation to steps that should or should not be taken by that authority as the
responsible social services authority. Having expressed the view that the
relationship between the psychiatrist and the child in that case was such as
would ordinarily lead to the conclusion that the psychiatrist owed the child a
duty of care, in the absence of reasons why such a conclusion should not
follow, Sir Thomas Bingham MR went on at p661A–H:
It was very
strongly urged that this conclusion should not follow because the psychiatrist
was entitled to a witness’s immunity from actions for negligence. It was
accepted that the child’s claim did not relate in any way to any evidence the
psychiatrist gave in court (because she never gave any), and nor to any proof
of evidence that the psychiatrist may have provided. But it was said that when
interviewing the child and expressing her conclusions and advising on future
action she will have known that, if she concluded that there had been abuse and
that the abuser was living with the mother and that separation was desirable,
there were likely to be proceedings in which she would be a witness.
Accordingly she was entitled to the immunity which the law, on grounds of
public policy, affords to those who give or offer or prepare to give evidence
in court. This argument was founded on Watson v McEwan [1905] AC
480; Marrinan v Vibart [1963] 1 QB 234 [1963] 1 QB 538; Saif
Ali v Sidney Mitchell & Co [1980] AC 198 and Evans v London
Hospital Medical College (University of London) [1981] 1 WLR 184.
In so far as
this immunity argument rests upon a factual inference about the psychiatrist’s
state of mind, I accept it. The psychiatrist must, I am sure, have appreciated
that (depending on her findings and advice) there might very well be court
proceedings in which she would be a witness. But there is nothing in Watson
v McEwan, Marrinan v Vibart and Saif Ali v Sidney
Mitchell & Co to suggest that a witness is immune from suit is such
circumstances. The public interest which these authorities recognise and
protect is the proper administration of justice: to that end witnesses must be
immune from civil action arising from what they say in court; and that
protection must not be circumvented by allowing civil actions based on the
earlier stages of preparation of a witness’s evidence. But the cases do not
indicate that those who have never become involved in administration of justice
at all enjoy immunity. The immunity of a witness has in the past been
treated as analogous to the immunity accorded to those involved in the conduct
of proceedings, and were the immunity as wide as was claimed a barrister or a
solicitor advising a client whether to proceed, or an expert advising a client
on a factual question with a view to proceedings, would be immune from actions
for negligence: such result is however clearly inconsistent with the authority
cited.
(My
emphasis.)
The Newham
appeal and related appeals went to the House of Lords. The common question in
those appeals, reported sub nom X (Minors) v Bedfordshire County
Council [1995] 2 AC 633, was whether a child could maintain an action for
damages (whether for breach of statutory duty or common law negligence) against
the responsible social services authority for steps taken or not taken in
relation to the welfare of that child. The relevant passage, in the present
context, is in the speech of Lord Browne-Wilkinson (with whom, on this point,
all the other members of the House agreed) at pp754G–755H. He held that the
Court of Appeal had placed too narrow a limit on the principle of witness
immunity. But, as I have already indicated, Lord Browne-Wilkinson was careful
to express no view as to the position in ordinary civil proceedings; and he
disclaimed any intention of casting doubt on the decision in Palmer v Durnford
Ford [1992] QB 483.
What, then, is
the position in relation to expert reports? It seems to me that the following
propositions are supported by authority binding in this court: (i) an expert
witness who gives evidence at a trial is immune from suit in respect of
anything that he says in court, and that immunity will extend to the contents
of the report that he adopts as, or incorporates in, his evidence; (ii) where
an expert witness gives evidence at a trial the immunity that he would enjoy in
respect of that evidence is not to be circumvented by a suit based on the
report itself; and (iii) the immunity does not extend to protect an expert who
has been retained to advise as to the merits of a party’s claim in litigation
from a suit by the party by whom he has been retained in respect of that
advice, notwithstanding that it was in contemplation at the time when the
advice was given that the expert would be a witness at the trial if that
litigation were to proceed. What, as it seems to me, has not been decided by
any authority binding in this court is whether an expert is immune from suit by
the party who has retained him in respect of the contents of a report that he
prepares for the purpose of exchange prior to trial — say, to comply with
directions given under Ord 38 r 37 RSC — in circumstances where he does not, in
the event, give evidence at the trial; either because the trial does not take
place or because he is not called as a witness.
If there is to
be immunity in such circumstances, it must be founded on some identifiable
ground of public policy. As Lord Wilberforce pointed out in Saif Ali v Sydney
Mitchell & Co [1980] AC 198 at p214H ‘account must be taken of the
counter policy that a wrong ought not to be without a remedy’. Further, it must
be recognised that the report prepared for the purposes of exchange prior to
trial is likely to contain, or reflect, the initial advice as to the merits of
the claim — advice that, as Sir Thomas Bingham MR pointed out in M (a Minor)
v Newham London Borough Council [1995] 2 AC 633 at p661F, did not
itself attract immunity.
In my view,
the only ground of public policy that can be relied upon as a foundation for
immunity in respect of the contents of an expert’s report, in circumstances
where no trial takes place and the expert does not give evidence, is that
identified by Lord Morris of Borth-y-Gest in Rondel v Worsley
[1969] 1 AC 191 at p251G and referred to by Lord Diplock in Saif Ali v Sydney
Mitchell [1980] AC 198 at p222B:
It has always
been the policy of the law to ensure that trials are conducted without
avoidable strains and tensions of alarm and fear.
The other
grounds mentioned in the authorities — the need to ensure that potential
witnesses are not deterred from coming forward and the need to avoid a
multiplicity of actions — appear to me to have little or no relevance in the
present context. The claim for immunity in a case like the present must, as it
seems to me, be tested against the criteria: is the immunity necessary for the
orderly management and conduct of the trial that is in prospect.
I am not
persuaded that experts who, as part of their professional practice and for
reward, offer their services as potential witnesses on matters within their
expertise are prone to ‘strains and tensions of alarm and fear’ at the stage at
which they are preparing reports for exchange. I would not, myself, subscribe
to the view that experts’ reports would be any more or less helpfully drawn
than they now are if the authors were or were not immune from suit by those who
retain them in respect of the contents of those reports. But there does come a
point at which the expert begins to take part in the management and conduct of
the trial in advance of proceedings in court. In Landall v
Dennis Faulkner & Alsop [1994] 5 Med LR 268 Holland J referred at
para 14 in the report of his judgment to the well known observation of Tomlin J
in Graigola Merthyr Co Ltd v Mayor, Aldermen and Burgesses of Swansea
[1928] 1 Ch 31 at p38:
Long cases
produce evils … In every case of this kind there are generally many
‘irreducible and stubborn facts’ upon which agreement between experts should be
possible, and in my judgment the expert advisers of the parties, whether legal
or scientific, are under a special duty to the Court in the preparation of such
a case to limit in every possible way the contentious matters of fact to be
dealt with at the hearing. That is a duty which exists notwithstanding that it
may not always be easy to discharge.
Holland J took
the view that ‘given the importance to the court of agreements such as that
evidenced by the impugned report, the public importance of immunity from suit
for such is underlined’. I respectfully agree. It is of importance to the
administration of justice, and to those members of the public who seek access
to justice, that trials should take no longer than is necessary to do justice
in the particular case; and that, to that end, time in court should not be
taken up with a consideration of matters that are not truly in issue. It is in
that context that experts are encouraged to identify, in advance of the trial,
those parts of their evidence on which they are, and those on which they are
not, in agreement. Provision for a joint statement, reflecting agreement after
a meeting of experts has taken place, is made by Ord 38 r 38 RSC. In my view,
the public interest in facilitating full and frank discussion between experts
before trial does require that each should be free to make proper concessions
without fear that any departure from advice previously given to the party who
has retained him will be seen as evidence of negligence. That, as it seems to
me, is an area in which public policy justifies immunity. The immunity is needed
in order to avoid the tension between a desire to assist the court and fear of
the consequences of a departure from previous advice.
In the present
case, as in Landall v Dennis Faulkner & Alsop [1994] 5 Med LR
268, the expert’s report was made after, and as a result of, a meeting between
the experts on each side. The report incorporated what had been agreed. On that
ground I agree with the judge’s conclusion that Mr Callaghan and the other
defendants are immune from suit by the plaintiffs in respect of the alleged
negligence in agreeing the viability of the gap solution on December 14 1989
and incorporating that agreement in the report delivered on December 18 1989.
I have sought
to explain why, contrary to the judge’s view, I am of opinion that the claims
that (absent negligence) Mr Callaghan went beyond, or acted inconsistently
with, what he had been instructed to do are misconceived and ought also to be
struck out. It follows that I would allow this appeal.
Agreeing, OTTON LJ said: I agree that this
appeal should be allowed.
I gratefully
adopt Chadwick LJ’s analysis of the history of the proceedings and analysis of
the facts. I concur with his conclusions that the allegations he identifies as
(3), (4) and (5) cannot be sustained and for the reasons he gives.
This case
poses the question: in what circumstances should an expert witness be granted
immunity from suit in respect of work done in preparing a report prior to, and
in contemplation of, pending proceedings?
The Stantons
say that Mr Callaghan was negligent in advising that the ‘gap solution’ was
feasible and would restore their property to its full market value, an
allegation that, I must assume for the purposes of this decision, is capable of
being proven at trial. They say a wrong has been done for which they should be
entitled to pursue a remedy through the courts. Mr Callaghan in turn says that,
as an expert witness he cannot be sued for the work he did in preparation for
the trial as he is protected by the principle of witness immunity. Although a
hearing never took place over this matter, so Mr Callaghan never did appear as
witness, for the sake for convenience I shall none the less refer to ‘witness’
immunity.
I have chosen
to approach this case by asking the following questions:
(i) What is
the principle of witness immunity?
(ii) What is
its scope, ie who enjoys this immunity and in what circumstances?
(iii) What is
the rationale for the principle of immunity?
(iv) What is
the role of an expert witness?
I turn first
to an examination of the principle of witness immunity.
Principle
of witness immunity
When Lord
Diplock in Saif Ali v Sydney Mitchell & Co [1980] AC 198 at
p222 spoke of:
the general
immunity from civil liability which attaches to all persons in respect of their
participation in proceedings before a court of justice; judges, court
officials, witnesses, parties, counsel and solicitors alike …
he was not
stating a novel proposition. Rather, as the following citations illustrate,
this rule has long been thought uncontroversial:
It may now be
taken to be settled law, that no action lies against a witness upon evidence
given before any court or tribunal constituted according to law.
(Kelly CB in Dawkins
v Lord Rokeby [1873] LR 8 QB 255 at p265.)
… as to the
immunity of a witness for evidence given in a Court of justice, it is too late
to argue that as if it were doubtful. By complete authority, including the
authority of this House, it has been decided that the privilege of a witness,
the immunity from responsibility in an action when evidence has been given by
him in a Court of justice, is too well established now to be shaken.
Practically I may say that in my view it is absolutely unarguable — it is
settled law and cannot be doubted.
(Lord Halsbury
LC in Watson v McEwan [1905] AC 481 at p486.)
It has been
well settled law for generations — certainly since Lord Mansfield’s time — that
witnesses enjoy absolute immunity from actions being brought against them in
respect of any evidence they may give in a court of justice.
(Salmon J in Marrinan
v Vibart [1963] 1 QB 234 at p237.)
So, we might
ask, how does this principle assist Mr Callaghan? For it is clear that these
statements refer to court proceedings, and no proceedings have yet taken place
in this case. The Stantons are hoping to sue Mr Callaghan for actions that took
place prior to any trial.
The scope
of the witness immunity principle
However, not
only does this principle cover evidence given at trial, over the years the
protection has extended to cover certain pre-trial actions thought to be
deserving of immunity from suit: Evans v London Hospital Medical
College (University of London) [1981] 1 WLR 184. Immunity has been held to
cover not only witnesses giving evidence, but also to extend to the preliminary
examination of witnesses (Watson v McEwan) and also to other
pre-trial work in preparing the case: Marrinan v Vibart; Rondel
v Worsley [1969] 1 AC 191 and X (Minors) v Bedfordshire County
Council [1995] 2 AC 633. This extension of immunity is important because it
illustrates the courts’ recognition that the smooth administration of justice,
commonly given as a reason for granting immunity, and one to which I shall
return, relies on not only what happens in the courtroom, but also what goes on
before. The hearing cannot be neatly divorced from the preparatory work it
depends on.
The immunity
for pre-trial work is not indiscriminate. Not all work done prior to a hearing
will be covered. It is a tailored immunity, and whether or not immunity exists
in respect of pre-hearing conduct rests on an assessment of whether the work in
question can be said to be:
So intimately
connected with the conduct of the cause in court that it can fairly be said to
be a preliminary decision affecting the way that cause is to be conducted when
it comes to a hearing.
(McCarthy P
of the New Zealand Court of Appeal in Rees v Sinclair [1974] 1
NZLR 180 at p187 at line 19, which test was adopted by a majority of the House
of Lords in Saif Ali.)
The issue of
whether this protection should properly be applied to pre-hearing work done by
an expert, such as Mr Callaghan, came before the courts only recently in Palmer
v Durnford Ford [1992] QB 483. In that case, the facts of which are set
out in the judgment of
with a novel situation and referring to the House of Lords’ decision in Saif
Ali as set out above, said at p488H:
immunity
would only extend to what could fairly be said to be preliminary to his giving
evidence in court judged perhaps by the principal purpose for which the work
was done. So the production or approval of a report for the purposes of
disclosure to the other side would be immune but work done for the principal
purpose of advising the client would not. Each case would depend upon its own
facts with the court concerned to protect the expert from liability for the
evidence which he gave in court and the work principally and proximately
leading thereto.
The position
of experts had been considered in subsequent cases, but I do not think anything
has been said to disturb these principles as stated in Palmer v Durnford
Ford.
Thus there is
clear authority that, provided the test of ‘principal and proximate connection’
is satisfied, the pre-hearing work of an expert will come within the protective
circle of the witness immunity principle. What remains to be considered is
whether it is appropriate to draw the circle narrower so that some experts, say
lawyers and police officers, are admitted, while others, such as surveyors and
architects, are not. Are there circumstances or a guiding principle that would
permit of such a distinction?
Although the
immunity granted to pre-hearing conduct has been expressly approved in certain
cases, for instance, preparation for criminal proceedings and investigations
into allegations of child abuse, see the comments of Lord Browne-Wilkinson in X
(Minors) v Bedfordshire County Council at p755E, I would point out
that there has been no express confinement of the principle of immunity to
these situations alone. I note that, having approved the application of
the principle to these situations, Lord Browne-Wilkinson then went on to say at
p755F:
I express no
view as to the position in ordinary civil proceedings…
While the need
to grant immunity may be more obvious in some cases than others, I do not think
we should rush to draw a rigid boundary between situations where immunity is
automatically granted to some and not to others. This is not an area of law
where categorisation is a helpful exercise. While mindful of the considerations
relating to expert witnesses in this field as set out by Chadwick LJ, these may
not exist in every case.
Witnesses who
claim to be and are treated as experts come from many disciplines and appear in
ever widening areas of litigation. They can range (alphabetically) from
accident reconstruction experts, accountants, architects, through to veterinary
surgeons. With the ever-increasing claims against professionals the range of
expertise has increased and with it their numbers. Lord Woolf has observed:
A large
litigation support industry, generating a multi-million pound fee income, has
grown up among professions. (Access to Justice, Ch 13, para 2.)
I start by
adopting the pragmatic approach of Mr Simon Tuckey QC that each case should
depend on its own facts. It may be appropriate to constrict immunity in one
situation for a particular expert, in an individual case. In another case it
may be appropriate to enlarge the immunity. Two examples suffice. A large firm
of accountants may advise a merchant bank on a course of action in the
financial world that leads to litigation. The merchant bank may claim that the
commercial, the pre-litigation and pre-trial advice was negligent. Here, the
advice given at each stage may be inexorably linked, in which case it may be
unrealistic, undesirable and unreasonable to protect the expert from liability
beyond the evidence he gave (or was to give) in court or a court-ordained
meeting between experts. Thus financial experts advising in commercial matters
recognise that they have assumed responsibilities and thus adopt proper risk
management techniques. Instructing big accounting firms is now likely to involve
separate engagement letters for every new task and the terms of those letters
are likely to be subject to lengthy negotiations. They define the scope of work
to be undertaken and the professional’s terms of business. If the scope of work
is not defined, it is assumed to include all areas where advice is customarily
provided: see Hurlingham Estates Ltd v Wilde & Partners
[1997] Lloyd’s Rep 525.
Where
professionals practice as partnerships, as the law presently stands, they have
unlimited liability. This consideration, together with the rising tide of
claims against professionals, have made them ever more alive to the need to
find ways to limit their exposure. Hence a variety of clauses of
ever-increasing complexity have been incorporated into letters of engagement
designed to exclude or limit liability. They include: exclusion clauses, caps
on liability, proportionality clauses and indemnity/hold harmless clauses.
In certain
circumstances, professionals cannot exclude liability, eg auditors undertaking
a statutory audit (section 310 Companies Act 1980) or solicitors engaged in
litigation. No expert can exclude liability for death or personal injuries
(section 2[1] Unfair Contract Terms Act 1977). In cases of economic loss, a
clause excluding or restricting liability is valid and enforceable to the
extent that the professional proves that it is reasonable: section 2[2] and
section 11 UCTA. In determining reasonableness the courts may have regard to
the relative strengths of the parties’ bargaining positions.
Such is the
commercial scene, where, as a matter of policy, restricting the immunity is
desirable and, where both parties have defined their positions with precision
and at arm’s length, in practice, reasonable.
The position
may be markedly different at the other end of the scale. Parents conceive and
are charged with nurturing a child who suffers from profound and irreversible
cerebral palsy. Was the condition constitutional in origin or caused or
significantly contributed to by the treatment or withholding of treatment
during the birth process? If they can prove causation and negligence, the child
will recover damages often in excess of £1m. If they cannot, they must rear the
child throughout the lifespan (albeit probably diminished) out of their own
resources augmented by limited State benefits. They instruct solicitors, who in
turn find an expert on whose advice litigation is initiated. His advice may
include matters concerning prognosis or treatment. There is almost certainly no
written contract either with the solicitors or with the parents. The doctor is
unlikely to qualify his opinion as ‘given without responsibility’. Without some
protection he is vulnerable to suit before he meets the other side’s expert or
at the doors of the court or goes into the witness box. For my part, I can well
imagine a doctor in such circumstances being deterred, not merely from giving
evidence, but from getting involved at all when there is a possibility of suit
if the outcome of the litigation or settlement does not meet the parents’ hopes
or expectations.
It would not
necessarily allay the expert’s reluctance to be told that in common with other
professional persons that he will not be held liable for negligent advice
unless that advice is such as no reasonable professional, competent in the
field and acting reasonably, could give. He (or increasingly, she) would rather
not run the risk. The parents and child would be bereft of professional
testimony even where there was a reasonable chance of success or even a
settlement that would alleviate hardship.
Holland J
appears to have extended the immunity to advice given at the court doors, which
was not confined to the issue of negligence and causation but to the efficacy
of future treatment and prognosis: Landall v Dennis Faulkner &
Alsop [1994] 5 Med LR 268. On the other hand, in Hughes v Lloyds
Bank [1998] PIQR 98, the Court of Appeal (Lord Bingham CJ presiding) held
that immunity did not attach to a medical report that brought about an early
settlement but that was never intended to be exchanged, and ordered that the
proceedings against the doctor should continue.
Of course,
experts are required to maintain certain professional standards. They should
not be negligent in carrying them out. But reliance on professionalism may not
be enough of a reason for keeping them outside the circle of immunity. If
immunity is to be granted, then it should be granted on wider considerations.
I would
suggest that in circumstances such as these there should be some principle that
overrides the apprehension of suit and that the
with the commercial example, reasonableness (or both).
Rationale
underpinning the immunity principle
Immunity is
granted to those connected with court proceedings for a reason. Indeed, several
reasons have been given as the basis for this, notably: the need to stop
matters being litigated over and over again by disgruntled parties (Roy
v Prior [1971] AC 470); the need to protect witnesses themselves from
suits stemming from the evidence they are to give (Munster v Lamb
(1883) 11 QBD 588; Watson v McEwan [1905] AC 481; Lincoln
v Daniels [1962] 1 QB 237, at p263); and a fortiori, the need to
encourage witnesses to come forward and say what they have to in court.
I pause here
to note that immunity is not granted primarily for the benefit of the
individuals that seek it. They themselves are beneficiaries of the overarching
public interest that can be expressed as the need to ensure that the
administration of justice is not impeded. This is the consideration that should
be paramount. And it is not only the conduct of the immediate hearing that we
should consider to be the ‘administration of justice’. This is not a narrowly
drawn phrase: it is best served by a purposive construction. In this I agree
with Lord Wilberforce, who said in Roy v Prior at p480F:
Immunities
conferred by the law in respect of legal proceedings need always to be checked
against a broad view of the public interest.
(My
emphasis.)
Each party who
comes, or is about to come, before a court is participating in an event that
supervenes individual concerns and interests. When we are concerned with the
proper and smooth administration of justice through our legal system we should
not seek to place burdens on those who participate in it at any stage. Thus I
do not think it necessary to make distinctions between the various reasons that
have been given to justify the granting of immunity and approach this situation
in an algorithmic fashion and say that some reasons should apply to some cases
but not to others; the case is best approached by asking the simple question:
Would it serve the interests of the administration of justice to grant
immunity?
To answer this
question we need to examine the role and place of an expert in the legal
system.
Role of an
expert witness
In Rondel
v Worsley, Lord Morris of Borth-y-Gest described the court process thus
at p253C:
It is
desirable in the public interest that a case in court should be regarded by all
concerned as being a solemn occasion when the utmost endeavour is being made to
arrive once and for all at the truth and to achieve a fair and just result. The
atmosphere must be created in which every person is given full opportunity to
play his part.
The role of an
expert witness was recently considered by Cresswell J in the case of The
Ikarian Reefer [National Justice Compania Naviera SA v Prudential
Assurance Co Ltd] [1993] 2 Lloyds Rep 68*. At pp81–82 (citations
omitted), he said:
*Editor’s
note: Also reported at [1993] 2 EGLR 183
1. Expert
evidence presented to the Court should be, and should be seen to be, the
independent product of the expert uninfluenced as to form or content by the
exigencies of the litigation…
2. An expert
witness should provide independent assistance to the Court by way of objective
unbiased opinion in relation to matters within his expertise… An expert witness
in the High Court should never assume the role of an advocate.
3. An expert
witness should state the facts or assumption upon which his opinion is based.
He should not omit to consider material facts which could detract from his
concluded opinion…
4. An expert
witness should make it clear when a particular question or issue falls outside
his expertise…
6. If, after
exchange of reports, an expert witness changes his view on a material matter
having read the other side’s expert’s report or for any other reason, such
change of view should be communicated (through legal representatives) to the
other side without delay and when appropriate to the Court.
I have cited
at length from the judgment of Cresswell J, because I think it important not to
gloss over the responsibilities and role of an expert witness, but set them out
in full. If we are to assess how the interests of the administration of justice
are best served then I think it necessary to have a comprehensive understanding
of the unique role played by the expert witness in achieving that.
What these
comments demonstrate is that although expert witnesses have duties to their
clients, they have also another, overriding, duty to the court, to assist the
court in resolving the issues and coming to a just conclusion. This also is the
understanding of the role of an expert witness as expressed in chapter 13 of
Lord Woolf’s Access to Justice report, where Lord Woolf said:
Para 11 … the
expert’s function is to assist the court …
Para 25 There
is wide agreement that the expert’s role should be that of an independent
adviser to the court … lack of objectivity can be a serious problem.
Lord Woolf
himself saw these comments not as a fundamental shift in the role of the expert
witness, but as a reaffirmation of the witness’ already existing duty:
Para 29 …
[the expert’s] responsibility is to help the court impartially on the matters
within his [or her] expertise. This responsibility will override any duty to
the client. The rule will reaffirm the duty which the courts have laid down as
a matter of law in a number of cases, notably Whitehouse v Jordan
[1981] 1 WLR 246, when Lord Wilberforce said: ‘Expert evidence presented to the
Court should be, and should be seen to be, the independent product of the
expert uninfluenced as to form or content by the exigencies of the litigation’.
It is clear to
me that in order to enable the court to arrive at the fair and just result in
the way set out by Lord Morris of Borth-y-Gest, expert witnesses must be given
full opportunity to uphold their duty to the court, and achieve it in the way
set out by Cresswell J and Lord Woolf, in an atmosphere free from threats of
suit from disappointed clients.
Against the
analysis, I consider the particular circumstances of this case. On any basis
the defendant, when attending the meeting with his opposite number, enjoyed the
immunity. It is true that he did not do so pursuant to Ord 38 r 38, but the
purpose of the meeting was to identify those parts of the evidence and the
other’s opinion that they could agree and those that they could not. It was in
the public interest to do so. The duty to the court must override the fear of
suit arising out of a departure from a previously held position. The expert
must be able to resile fearlessly and with dignity. In the instant case both
experts resiled from more extreme positions. In theory, at least, the
defendants could have sued their expert for placing them in a more adverse
position. It must follow that there was no duty to inform the lay clients or
the solicitors or to seek instructions before recording the concession in the
joint statement.
Accordingly, I
would allow the appeal.
Agreeing, NOURSE LJ said: I also agree with
each of the conclusions reached by Chadwick LJ. However, since his judgment and
that of Otton LJ demonstrate that, on the question of expert witness immunity
in general, different views are tenable, I will briefly state my own position
on that question.
The extent of
an expert witness’s immunity from suit is still in course of development. No
doubt it can and will be developed on a case-by-case basis. Nevertheless, it is
desirable that it should so far as practicable be governed by a general rule,
just as in the case of a witness of fact. The rule cannot be quite the same
because the expert witness usually has the dual capacity of advising the client
as well as giving evidence in support of his case.
That said, I
see no justification for distinguishing between an expert and a lay witness,
either on the ground that the expert is usually remunerated for his services or
on the ground that he may be less likely
distinction between civil and criminal proceedings. An immunity founded on a
requirement of public policy that witnesses should not be inhibited from giving
frank and fearless evidence cannot afford to make distinctions such as these.
If they were allowed, it could never be certain that the public policy would
not sometimes be put at risk.
In regard to
the dual capacity of an expert witness the judgment of Mr Simon Tuckey QC in Palmer
v Durnford Ford [1992] QB 483 is a helpful starting point. Having said
that in Saif Ali v Sidney Mitchell & Co [1980] AC 198 the
House of Lords had decided that the advocate’s immunity from suit extended to
some pre-trial work, but only where the particular work was so intimately
connected with the conduct of the case in court that it could fairly be said to
be a preliminary decision affecting the way that the case was to be conducted
when it came to a hearing, the judge continued at p488G–H:
I think a
similar approach could be adopted in the case of an expert. Thus, the immunity
would only extend to what could fairly be said to be preliminary to his giving
evidence in court judged perhaps by the principal purpose for which the work
was done. So the production or approval of a report for the purposes of
disclosure to the other side would be immune but work done for the principal
purpose of advising the client would not. Each case would depend upon its own
facts with the court concerned to protect the expert from liability for the
evidence which he gave in court and the work principally and proximately
leading thereto.
In that
passage the suggested analogy with the advocate’s immunity from suit led Mr
Tuckey into propounding, though tentatively, a ‘principal purpose’ test for
pre-trial work. While I doubt that the distinction will often be material, I am
not certain that that is the correct test. If the object of the immunity is to
be achieved, it might well be said that a ‘substantial purpose’ test should be
preferred. That question does not, however, arise here. It is clear that Mr
Callaghan’s draft report of December 11 1989, the joint statement that followed
his meeting with Mr Kelsey on December 14 and his final report of December 18
or thereabouts were all prepared for the principal, if not the sole, purpose of
his giving evidence in court at the trial fixed to start on January 11 1990.
Moreover, it is to my mind obvious that the immunity was not lost by Mr
Callaghan’s not subsequently giving the evidence he was expected to give.
I too would
allow this appeal.
Appeal
allowed.
