Report of expert witness – Plaintiffs’ expert departing from previous advice following joint meeting with defendant’s expert – Claim in negligence arising from report – Whether expert having immunity from suit in respect of report prepared for purposes of proceedings in which he was to give evidence
The plaintiffs owned Espica Villa, Aylesbury, which suffered from subsidence damage. Partial underpinning was carried out, but failed to stabilise the property and further subsidence occured. The defendant, or his firm, was engaged by the plaintiffs to make a report in which the defendant advised that partial underpinning had been an inappropriate solution and what was now required was the total underpinning of the building. Based on that report, the plaintiffs made a claim under their home insurance policy, which was rejected. The plaintiffs brought proceedings against the insurers, instructing the defendant as an expert witness. However, at a subsequent meeting with the insurers’ expert witness, convened before trial on the order of the court to identify the issues, the defendant, departing from the previous advice, agreed that the partial underpinning could be restructured, at less cost, rather than totally replaced. The insurance company then paid £16,000 into court, which the plaintiffs accepted. Espica Villa was later sold for £50,000, said to be its site value, whereas its value, repaired, was alleged to be £105,000. The plaintiffs then brought proceedings against the defendant, and his firm, contending that he had acted negligently and in breach of his contract of retainer. The defendant applied unsuccessfully to strike out the plaintiffs’ claim and contended that, acting in his capacity as expert adviser retained by the plaintiffs, he was entitled to immunity from suit in respect of his individual reports and the joint report. The defendant appealed to the judge. The judge also refused to strike out the claim and held that if at a meeting of experts, an expert intended to enter into an agreement which would constitute a substantial concession from the case hitherto advanced by his client, it was arguable that he ought to tell his client of that intention before entering into that agreement. The defendant appealed.
Held The appeal was allowed.
1. Immunity from suit in respect of the contents of an expert’s report, in circumstances where the expert did not give evidence at trial, was to be founded upon an identifiable ground of public policy, and “account must be taken of the counter policy that a wrong ought not to be without a remedy”: see Saif Ali v Sydney Mitchell & Co [1980] AC 198 per Lord Wilberforce, at p214.
2. It was of importance to the administration of justice that trials took no longer than was necessary to do justice in the particular case. To that end, experts, whose overriding duty was to the court, were encouraged to identify in advance those parts of their evidence on which they were, and those on which they were not, in agreement. Public interest required an ability to make proper concessions without “avoidable strains and tensions of alarm and fear” (see Rondel v Worsley [1969] 1 AC 191 per Lord Diplock, at p222), which included fear that any departure from advice previously given would be seen as evidence of negligence.
3. The defendant’s reports were all prepared for the principal, if not the sole, purpose of his giving evidence in court at the trial: see cf Landall v Dennis Faulkner & Alsop [1994] 5 Med LR 268. 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.
Rupert Jackson QC and David Sears (instructed by Veale Wasbrough, of Bristol) appeared for the appellants; Jonathan Coggins (instructed by Norman Saville & Co) appeared for the respondents.
