Expert immunity ruling – analysis by Guy Mansfield QC

5 April 2011 by Guest Contributor

The decision of the Supreme Court in Jones v Kaney (see earlier post by Rosalind English) removes the immunity previously enjoyed by those who have acted as experts from suit by their former clients.  To understand the significance of the decision, a number of important points should be kept in mind.

• The immunity from suit for damages for a former client in respect of the retained expert’s activity in a civil action was already a limited one. In Palmer v Durnford Ford, [1992] QB 483, the High Court held that an expert witness was not immune from suit in respect of work done primarily for the purpose of advising the client.
• Expert witnesses have, since the decision of the Court of Appeal in Meadow v General Medical Council [2007] QB 462, been liable to disciplinary sanction in respect of their activity and evidence as experts in courts and tribunals. That flows from the public interest in the fitness to practice of the professional (particularly, but not only, a medical practitioner).
• The High Court in Phillips v Symes (No. 2) [2005] 1 WLR 2043 established that an expert witness was susceptible to the court’s jurisdiction under Section 51 (1) and (3) of the SCA 1981 to a personal costs order in respect of costs of litigation wrongly incurred or thrown away as a result of inappropriate evidence as an expert witness.
• A claim for damages by a former client against a retained expert arising out of criminal proceedings resulting in the claimant’s conviction will be struck out as an abuse of process unless the convicted client first overturns the conviction on appeal: Hunter v Chief Constable of West Midlands Constabulary [1982] AC 529, see paragraph 60of the judgment of Lord Phillips.
• The decision does not dilute witness immunity from suit for defamation as a result of anything said in court.
• The decision does not lay open the expert witness to an action for damages by the former opposing party.
• The expert’s duties are owed only to  the court (remedy by means of personal costs order) ; the former client  (remedy in damages for breach of duty of care); the professional standards of any professional body to whom the expert is answerable (remedy by way of professional disciplinary proceedings).
• These remedies are not mutually exclusive. An expert who is guilty of seriously egregious conduct might legitimately be exposed to a costs liability to other parties and damages to his client and disciplinary proceedings with sanction by the relevant professional body.  But it should be remembered that:

1. The threshold for a personal costs’ liability is likely to be high, akin to the criteria for a wasted costs order.  If the client does not waive privilege, the expert will have the benefit of any doubt where the facts are not clear.
2. Negligence is not easy to prove against an expert witness, especially in relation to what he or she says in the heat of battle in court.
3. The threshold for a disciplinary sanction is likely to be “misconduct” albeit this can be no higher than negligence in certain circumstances.

The decision removes the uncertainty which followed Stanton v Callaghan [2000]1 QB 75 (applying Palmer) as to which side of the line the activities of an expert fell:  was it (i) “preliminary to his giving evidence in court judged perhaps by the principal purpose for which the work was done” (not actionable under Stanton) or (ii) “work done for the principal purpose of advising the client” (actionable since Palmer).  But the argument that professional indemnity insurance is available is not going to be conclusive in persuading some experts to continue such work.  Professional persons indeed engage in activities where the possibility of being sued is higher than it is in relation to undertaking the role of an expert in litigation. But the crunch will be whether “the game is worth the candle”.

The crucial point is that practising as an expert witness is a discretionary activity.  The practitioner can and will abandon it if the risk of being sued and the premiums are too high.  He/she will stick to clinical practice or whatever.   Short of retirement, the professional has to practice his/her profession.  So Lord Dyson’s analogy (paragraph 117) with obstetrics and the willingness of obstetricians to continue their work is a weak one.   Most obstetrics’ accidents now arise within the NHS.  Clinicians are covered for this by their employers.  In private medicine, however, the level of insurance premiums for obstetrics is now considered prohibitive by many practitioners.

But even if there were to be a rash of well-founded claims against local authorities (LAs) arising out of allegedly misconceived care proceedings, for example, it seems to the writer unlikely that local authorities would rush to sue the paediatricians who gave evidence.  Leaving aside the legal obstacles, LAs would thereafter find it hard, if not impossible, to find others prepared so to act in future.   Further, such experts engaged by LAs will not by this decision be rendered actionable at the suit of the disappointed parent or child.  As for parents who lose the right to care for a child, who wish to blame their retained expert, they will face a major evidential and causation hurdle save in obvious cases.  It will be hard to obtain legal funding.

Experts who speak the truth or whose opinion evidence is founded on reasonable grounds have nothing to fear.  Those whose evidence is not so grounded are, in clear cases, already open to disciplinary sanction.  Why should they not be liable to compensate former clients?

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