Question
I am a chartered surveyor and have acted as an expert witness in a number of building and boundary disputes. I am aware that the Supreme Court has recently removed immunity from suit for experts, with the result that experts can now be sued for giving negligent evidence (whether in a report or at trial). How does this decision affect the balancing exercise that I must carry out between my duty to the court and my duty to my clients?
Answer
It should not affect your approach. An expert’s “overriding duty” is to the court and this overrides any obligation to the client. The fact that immunity from suit has been abolished does not elevate the duty to the client. There should not in any event be any conflict between your duty to the court and your duty to a client that requires to be balanced.
Explanation
An expert who acts in civil litigation owes his client a duty to act with reasonable skill and care. He owes this duty in contract (section 13 of the Supply of Goods and Services Act 1982) and in tort (on the basis of Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465). He holds himself out as a skilled and competent person and the client relies on his advice in determining whether to bring or defend proceedings, considering settlement values and evaluating litigation risks. The client also relies on him to give the court skilled and competent expert opinion evidence.
But an expert witness who is retained to act for a client in relation to litigation also owes a duty to the court. CPR 35.3 provides that it is the duty of an expert to help the court on matters within his expertise and that this duty overrides any obligation to the person from whom the expert has received instructions or by whom he is paid. This is emphasised in the Protocol for the Instruction of Experts to give Evidence in Civil Claims (2005) at [4.1].
Approach of the Supreme Court
In Jones v Kaney [2011] UKSC 13; [2011] PLSCS 92 the defendant, a consultant clinical psychologist, was instructed to act as an expert in connection with a personal injury claim where liability was admitted, so that only quantum remained in issue. The defendant negligently signed a joint statement with the other side’s expert that was damaging to her client and which did not reflect her true view or what she had orally agreed with the other expert, but which she felt pressured to sign. The negligence claim against the defendant was struck out by Blake J, who certified, however, that the case involved a point of law of general public importance and granted a “leapfrog certificate” to enable an appeal to the Supreme Court to be brought directly from his decision.
The Supreme Court overruled the Court of Appeal decision in Stanton v Callaghan [1998] 3 EGLR 165 and decided that the immunity from suit for breach of duty enjoyed by expert witnesses in legal proceedings should be abolished. In Stanton, immunity had been upheld by the Court of Appeal on the basis that the public interest in facilitating full and frank discussion between experts before trial required that each should be free to make proper concessions without fear that any departure from advice previously given to the party who had retained him would be seen as evidence of negligence. It was felt that the immunity was 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 Jones, the principal justification that was advanced on behalf of the defendant for retaining immunity for experts was that expert witnesses would be reluctant to give evidence against their clients’ interests if there was a risk that they would be sued. This was the “divided loyalty” argument: that the expert owed an overriding duty to the court and unless there was immunity from liability to the client, there was a danger that the expert would disregard their duty to the court.
Where the balance lies
This argument was rejected by a majority of the Supreme Court and is relevant for the purpose of answering your question about balancing the court’s and a client’s interests. The key lies in establishing whether the duties that an expert owes his client and those that he owes the court are in fact competing. In Jones, Lord Hope (in the minority) considered that there was a conflict. However, the majority did not accept that the duties were incompatible.
Lord Dyson (in the majority) observed that there is no conflict between the duty owed by an expert to his client and his overriding duty to the court. His duty to the client is to perform his function as an expert with reasonable skill and care. This includes a duty to perform the overriding duty of assisting the court. Thus the discharge of the duty to the court cannot be a breach of duty to the client. If the expert gives an independent and unbiased opinion which is within the range of reasonable expert opinions, he will have discharged his duty both to the court and his client. If, however, he gives an independent and unbiased opinion which is outside the range of reasonable expert opinions, he will not be in breach of his duty to the court, because he will have provided independent and unbiased assistance to the court, but he will be in breach of the duty owed to his client.
Olivier Kalfon is a barrister at Enterprise Chambers and Emma Humphreys is a partner at Charles Russell LLP
Questions on any topic can be e-mailed to egq&a@enterprisechambers.com and egq&a@charlesrussell.co.uk
