Expert witnesses no longer immune from being sued
30 March 2011
This case, which had been granted a “leap-frog certificate” to go straight from the Divisional Court to the Supreme Court, overturns a long-established principle that expert witnesses should be protected from legal action on the basis of public policy. The majority hold that the immunity from suit for breach of duty (whether in contract or in negligence) contravenes the European Convention on Human Rights. The right to a fair trial under Article 6 impliedly entitles an individual, whose position in civil proceedings has been compromised by negligent advice, to take action against that expert to compensate for the damage caused.
The issue arose in this case because the defendant psychologist (“K”) had signed a joint expert report in civil proceedings taken by the claimant (“J”), who had been seeking damages for psychiatric injury following a road traffic accident. The psychologist’s initial report suggested a diagnosis of post-traumatic stress disorder. The defendant’s psychiatric expert concluded that J was exaggerating his physical symptoms and, as a result, a joint statement was ordered. The joint expert statement was signed by both experts and was very damaging to J’s case in that it concluded that he had not suffered PTSD and that there were doubts as to the genuineness of his reporting of symptoms. It transpired that K had signed the joint statement without having read the defendant’s report and despite the fact that she did not agree with the joint statement’s contents.
For the full background, see the UK Supreme Court Blog’s case preview. The claim was initially struck out on the basis of a 1998 Court of Appeal ruling which confirmed immunity of suit for expert witnesses on the basis of public policy. The judge (Blake J) conceded the application reluctantly since he had concluded that for an expert to be immune from liability in such circumstances was arguably incompatible with a claimant’s Article 6 rights:
An expert who negligently prepares for a joint conference, fails to carefully scrutinise the proposed joint statement before signing it, or is persuaded to record entirely unfounded imputations against his instructing party based upon a failure to remember or record the instructions, can cause great damage to a party in civil proceedings.
The public policy rationale for the immunity rule is one of common sense; in the interests of economy and expedition of proceedings, the courts will not lightly permit a party to find another expert to replace one in which he has lost confidence. However, this has the effect of leaving a party who is injured by a careless statement or piece of advice without a remedy. Such a blanket immunity is contrary to the jurisprudence of the Strasbourg Court as clarified in the 1998 case of Osman v UK, which establishes that blanket immunities preventing claimants seeking damages in tort may be contrary to art 6 if they are disproportionate having particular regard to their scope and application to the case at issue.
The following is taken from the Supreme Court press summary (references to the paragraphs in the judgment are the numerals in square brackets):
The Supreme Court by a majority (Lord Hope and Lady Hale dissenting) allowed the appeal. Lord Phillips gives the lead judgment. The majority hold that the immunity from suit for breach of duty(whether in contract or in negligence) that expert witnesses have enjoyed in relation to their participation in legal proceedings should be abolished.
Reasons for the judgment
Witness immunity dates back over 400 years, long before the development of the modern lawof negligence and the practice of forensic experts to offer services to litigants for reward .It originally took the form of absolute privilege against defamation claims but was extended toall forms of suit . It overlapped with the wider immunity formerly enjoyed by an advocatefrom negligence claims by his own client, before that immunity was abolished by the House ofLords in 2001 on the ground that it could no longer be justified .
The general rule was that every wrong should have a remedy and that any exception to this rulemust be justified as being necessary in the public interest and kept under review .
The primary rationale for the immunity was a concern that an expert witness might bereluctant to give evidence contrary to his client’s interest, in breach of his duty to the court, if there was a risk that this might lead his client to sue him . In common with advocates,however, there was no conflict between the duty that the expert had to provide services to his client with reasonable skill and care, and the duty he owed to the court. The evidence did not suggest that the immunity was necessary to secure an adequate supply of expert witnesses .The removal of immunity for advocates had not diminished their readiness to performtheir duty, nor had there been a proliferation of vexatious claims or multiplicity of actions [57 -60].
For these reasons the majority concluded that no justification had been shown for continuing to hold expert witnesses immune from suit for breach of duty in relation to the evidence they give in court or for the views they express in anticipation of court proceedings . This decision did not affect the continued enjoyment by expert witnesses of absolute privilege from claims in defamation , nor did it undermine the longstanding immunity of other witnessesin respect of litigation .
Lord Hope and Lady Hale, dissenting, disagreed with the majority’s approach of reviewing the justification for the immunity. The rule was longstanding and its application to claims beyond defamation in respect of evidence given by any witness was confirmed by the House of Lordsin Watson v McEwan  AC 480 . The question therefore was whether an exception tothis rule could be justified .
The main concern arising from the decision of the majority was the effect on disappointed litigants liable to commence worthless but time consuming claims against their experts . The lack of a secure principled basis for removing the immunity, of a clear dividing line between what was to be affected by the removal and what was not, and of reliable evidence to indicate what the effects might be,suggested that the wiser course was to leave any reform, if needed, to Parliament .
An analysis of this judgment by Guy Mansfield QC is here.
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