Expert witness – Immunity – Appellant bringing claim against expert witness retained by him in connection with litigation – Claim seeking damages for negligence with regard to preparation of joint experts’ report – Claim struck out on ground that expert witness enjoying immunity from suit by client for breach of duty – Whether any continuing justification for immunity – Whether immunity to be abolished – Appeal allowed
The appellant had retained the respondent, a consultant clinical psychologist, as an expert witness in connection with a claim for damages following a road traffic accident. The respondent’s participation related to the issue of post-traumatic stress disorder. In the course of the proceedings, the respondent, by order of the court, consulted the expert on the opposing side and signed a joint statement without comment or amendment, although it did not entirely reflect her views. Certain extracts from that joint statement were damaging to the appellant’s prospects of success, with the result that the matter was settled for a sum that was considerably less than might otherwise have been the case.
The appellant brought proceedings against the respondent, claiming damages for negligence. The respondent sought to rely on the immunity of witnesses established by the Court of Appeal in Stanton v Callaghan [1998] 3 EGLR 165. It was accepted that if Stanton remained good law it was binding on the High Court and Court of Appeal, such that the appellant had no defence to the respondent’s application to strike out the claim on that ground. The judge accordingly struck out the claim but granted a certificate, under section 12 of the Administration of Justice Act 1969, for a “leapfrog” appeal directly to the Supreme Court on the ground that the case involved a point of law of general public importance: see [2010] EWHC 61 (QB); [2010] 2 All ER 649.
Although the narrow issue on the appeal was whether an expert witness enjoyed immunity from suit in respect of the act of preparing a joint witness statement, submissions encompassed the wider issue of whether it was still in the public interest to exempt expert witnesses from liability in negligence in respect of the performance of their duties.
Held (Lord Hope and Lady Hale dissenting): The appeal was allowed.
Immunity ran counter to the general rule that no wrong should be without a remedy. Any exception to the rule had to be justified as being in the public interest: Darker (as personal representative of Docker, deceased) v Chief Constable of West Midlands Police [2001] 1 AC 435 and Rondel v Worsley [1969] 1 AC 191 considered. Therefore, it should not be presumed that because immunity existed it should be retained unless it was shown to be unjustified; the onus lay on the respondent to justify the immunity behind which she sought to shelter. No justification had been shown for retaining the immunity of expert witnesses from claims in negligence brought by their clients.
There was no public policy justification for the immunity from suit enjoyed by witnesses of fact to be enjoyed also by expert witnesses. A significant distinction existed between an expert witness and a witness of fact. The former would have chosen to provide his services, and voluntarily undertaken duties to his client, for a reward under contract, whereas the latter might not have volunteered to give evidence and owed no duty to the claimant. An expert who acted in civil litigation owed a duty to his client to act with care and skill, both in contract, under section 13 of the Supply of Goods and Services Act 1982, and in tort: Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 applied. The expert witness had more in common with the position of the advocate. Each undertook a duty to provide services to the client. Those services included a paramount duty to the court and the public, which might require the advocate or expert witness to act in a way that did not advance the client’s case. Since immunity from suit had been abolished for barristers in respect of claims by clients for negligence in the conduct of litigation on their behalf, that undermined any policy justification for immunity for expert witnesses: Palmer v Durnford Ford [1992] QB 483 and Arthur JS Hall & Co v Simons [2002] 1 AC 615 considered.
No evidence had been adduced that a removal of immunity would make expert witnesses reluctant to act in that capacity or to testify freely and frankly in accordance with their duty to the court for fear of being sued by their clients if they gave evidence that went against their clients’ interests. Expert witnesses, like barristers, were professional people who could be expected to comply with the rules and ethics of their profession. Immunity had already had been removed in relation to disciplinary proceedings for serious professional misconduct: Meadow v General Medical Council [2006] EWCA Civ 1390; [2007] QB 462 considered. The duty of experts to assist the court under CPR 35.3 and their duty to their clients did not conflict. An expert witness was likely to be retained, as in the instant case, on terms that the expert would perform the functions that were spelt out in detail in the CPR. The expert’s duty to the client included a duty to perform the overriding duty of assisting the court. If the expert gave an independent and unbiased opinion that was within the range of reasonable expert opinions, he would have discharged his duty to the court and to the client. An expert would be aware of his duty to the court, and that if he frankly changed his view it would be apparent that he was performing that duty. There was no reason why he would be concerned that this would result in him being sued for breach of duty. In that regard, the removal of a barrister’s immunity had not resulted in any diminution of advocates’ readiness to perform their duty.
Further, it was unlikely that the abolition of immunity would lead to a proliferation of vexatious claims against diligent expert witnesses for alleged breaches of duty. It was not easy for a lay litigant to mount a credible case that its expert witness had been negligent, and such a claim would not be viable without the support of another expert witness. The abolition of immunity for barristers had not led to a flood of claims from disappointed litigants.
It followed that no justification had been shown for continuing to hold expert witnesses immune from suit in respect of the evidence that they gave in court or for the views that they expressed in anticipation of court proceedings. The immunity that they had enjoyed with regard to their participation in legal proceedings should be abolished, save to the extent of the absolute privilege that they, along with barristers, enjoyed in respect of claims in defamation.
Roger Ter Haar QC and Daniel Shapiro (instructed by Hill Dickinson LLP, of Liverpool) appeared for the appellant; Patrick Lawrence QC and Charles Phipps (instructed by Berrymans Lace Mawer LLP, of Manchester) appeared for the respondent.
Sally Dobson, barrister
