Litigation — Expert evidence – Joint statement – Claimant instructing defendant to advise and act as expert witness in legal proceedings – Claimant subsequently claiming damages against defendant for negligence — Defendant applying to strike out claim — Whether cause of action in negligence arising against expert witness in connection with litigation – Whether witness immunity principle applying to defendant where joint statement damaging to claimant – Whether circumstances appropriate for granting permission to appeal to Supreme Court – Applications granted
The defendant expert was a consultant clinical psychologist whom the claimant had retained in connection with his claim for damages following a road traffic accident. In the course of the proceedings, by order of the court, the defendant consulted the expert on the opposing side and signed a joint statement without comment or amendment. Certain extracts from that joint statement were damaging to the claimant’s prospects of success. The matter was settled for a sum that was considerably less than would have been the case had the defendant not signed the joint statement.
The claimant instituted proceedings for damages for negligence against the defendant. She responded with a plea of witness immunity, pursuant to the decision of the Court of Appeal in Stanton v Callaghan [1998] 3 EGLR 165 and applied to strike out the claimant’s claim. The claimant recognised that, in this case, as in Stanton, he was seeking to sue an expert whom he retained to advise and appear as a witness in litigation. Further, the occasion of the negligence alleged was in respect of the revised position communicated by the defendant in the joint expert report. Thus, if Stanton remained good law, it was binding on the court and the application to strike out would have no defence.
If Stanton was binding on the instant court, the parties recognised that it would be equally binding on the Court of Appeal. Accordingly, the parties consented to the grant of a certificate to apply for leave to appeal to the Supreme Court, under section 12 of the Administration of Justice Act 1969.
Held: The applications were granted.
(1) The decision in Stanton remained an accurate statement of the law and was binding on the court in the instant case. The fact that human rights considerations might question some of the policy assumptions behind a previous decision of a superior court was no basis for concluding that the decision was no longer authoritative. There was no judgment of the European Court of Human Rights on the issue. A direct challenge to the decision or principle in play would be required before a court could rely on the passage of the Human Rights Act 1998 as a sufficient statutory change in the law to revisit a proposition spelt out a binding judgment in a superior court. The fact that subsequent developments in purely domestic jurisprudence had narrowed or undermined the policy basis for expert witness immunity again did not deprive the decision of its binding effect. The decision had not been criticised by any of the courts that subsequently examined different aspects of witness immunity. Furthermore, Stanton could not be distinguished on the basis of the different factual allegations relating to negligence at the pre-experts’ meeting: Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465 considered.
(2) If Stanton was binding on the instant court, the parties had recognised that it was equally binding on the Court of Appeal. Neither submitted that it would be beneficial for the Court of Appeal to re-examine the decision on strike-out in the light of the cuurrent state of the law. Neither did the resolution of the instant debate require a trial on the facts. Accordingly, since the conditions in section 12(1) of the Administration of Justice Act 1969 to justify an application for permission to bring an appeal to the Supreme Court were satisfied, the court would grant a certificate to that effect.
(3) Per curiam: Although Stanton remained good law, it was likely that, on re-examination by a superior court, it would emerge that the public policy justification for the rule could not support it. A policy of blanket immunity for all witnesses, indiscriminately protecting witnesses as to fact and witnesses on the opposing side from expert witnesses retained by a party to advise it before and during the proceedings as to a pertinent issue in those proceedings, might well prove to be too broad to be sustainable and therefore disproportionate. The public benefit of truthful, accurate, reliable and frank evidence to the court was unlikely to require such a broad immunity. It could be enforced by the court of its own motion, or by professional bodies supervising the professional activities of the expert in question, including the activity of giving evidence to the court. It was difficult to see why an expert, who owed a duty of care to a claimant when first advising and preparing reports, should not continue to owe that duty when signing a joint statement that ordinary principles of professional competence would suggest that he or she needed to prepare for, read, and ensure that it reflected his or her true opinion, and was based on proper facts or professional judgment. If there was a case for the continued immunity in its current shape, then fact that it gave rise to hard cases was not a sufficient basis to depart from it. However, if the claimant’s allegations were correct, he had suffered a particularly striking injustice on which the first call on public policy was that it should be remedied, subject to some compelling reason as to why he should be deprived of it in the greater public interest.
Roger Ter Haar QC and Daniel Shapiro (instructed by Hill Dickinson LLP, of Liverpool) appeared for the claimant; Patrick Lawrence QC (instructed by Berrymans Lace Mawer LLP, of Manchester) appeared for the defendant.
Eileen O’Grady, barrister
