The Supreme Court could end a fundamental rule of law on expert witnesses
It is a fundamental rule of law that no action may be brought against parties or witnesses for anything said or done, however negligently, in the ordinary course of proceedings in a court of law.
This immunity rule does not merely protect witnesses in their evidence before the court but also extends to the preparation of that evidence. It will therefore include, for example, a written report prepared for the proceedings, whether or not the case then settles.
The courts have long recognised two public policy purposes underlying the rule. First, the administration of justice would be greatly impeded if witnesses feared that persons against (or for) whom they gave evidence might subsequently involve them in costly litigation. Second, the rule guards against a multiplicity of actions in which the value or truth of the evidence previously given could be relitigated.
Immunity for expert witnesses
The rule is of significance for surveyors and other property professionals who make their living by giving evidence in court. Even if such evidence is given negligently, the client that may have suffered a loss as a consequence will be unable to recover a penny.
This is a curious result for a rule that is said to be founded on public policy considerations. It means that if a surveyor is negligent in the initial advice given to the client, before litigation is even contemplated, and is subsequently negligent when giving evidence to the court, proceedings for damages can be taken for loss suffered in connection with the initial advice, but not in respect of any additional loss that might flow from the negligent evidence.
Although the existence of the rule has been affirmed in recent times both in the Court of Appeal and the House of Lords, there are signs that its days may be numbered. Two inroads into the hegemony of the rule have been developed by the courts.
In Meadow v General Medical Council [2006] EWCA Civ 1390; [2007] QB 462, the Court of Appeal held that an expert witness was not immune from disciplinary proceedings that questioned his fitness to practise in the light of his evidence.
In Phillips v Symes (a bankrupt) [2004] EWHC 2330 (Ch); [2005] 1 WLR 2043, the High Court held that an expert witness whose evidence had led to significant expense, in reckless disregard of his duties to the court, was vulnerable to an order for costs.
However, the basis for the continued existence of the rule itself will soon be scrutinised by the Supreme Court, following the grant of permission to appeal in Jones v Kaney [2010] EWHC 61 (QB).
Challenging the rule
In
In Hall, Lord Hoffmann defended the principle of witness immunity by saying that a witness owes no duty of care in respect of the evidence he gives to the court. With all due respect, that view is questionable, at least in the case of an expert witness. The primary duty of such a witness is to the court, certainly. The RICS practice statement for surveyors acting as expert witnesses accepts that this duty will override any duty owed to the client – but it recognises that a duty to the client exists in the first place.
It is said that an expert witness in such circumstances should be able to give evidence without fearing that any departure from views previously expressed to the client will be seen as negligent. This assertion overlooks the fact that the client may be free to sue for negligence in respect of the earlier advice, which by then may have been shown to be wrong.
It is anomalous for expert witnesses to be treated differently from advocates (as Lord Hobhouse pointed out in Hall). It will be interesting to see whether the Supreme Court concurs in Jones, and abolishes the immunity rule for expert witnesses.
Guy Fetherstonhaugh QC is a barrister at Falcon Chambers
