The erosion of expert immunity

Experts can win or lose your case. They may be instrumental in whether to bring a claim in the first place. Their opinion on its merits may determine your entire strategy – whether to be bullish or pursue settlement. Their oral testimony can clarify extremely complex issues and, if persuasive, can educate and even steer the judge to the right conclusion.

It has long been established that experts cannot be sued for what they say in court. But, unlike witnesses of fact, experts are 'compensated' for their assistance. Some question why, then, if experts are paid to do a job, are they not accountable if they do it negligently or dishonestly?

Various justifications for experts' immunity from suit exist:

• an expert witness has a duty to both the court and the client and there are circumstances where these two duties could conflict. If that is the case, the duty to the court trumps that to the client. An expert has to feel free to give his honest opinion in court without worrying that he might be sued by his own client
• if professional negligence claims against experts were allowed, courts would find it very difficult to assess/consider how (and to what extent) an expert's negligence or dishonesty affected the underlying claim
• if there was no immunity from suit, it could be difficult to find experts who were willing to testify in controversial cases, such as medical negligence and child abuse cases.

The Court of Appeal case of Stanton v Callaghan[1] illustrates the extent of the immunity. A structural engineer expert dramatically revised his opinion after a meeting of experts which undermined his client's case. The client then brought a breach of retainer and negligence claim against him. The court held that the expert's immunity from suit included not only testimony in court but any pre-trial work that was "so intimately connected with the conduct of the case in court that it can fairly be said to be a preliminary decision affecting the way that the case is to be conducted when it comes to a hearing". Even where an expert is dishonest and lies to the parties or the court, his immunity stays intact [2]. Remember, immunity is from civil suit, so he could theoretically be prosecuted for perjury or perverting the course of justice as was the case with the 'expert', Terence Bates, who was given a suspended custodial sentence in April 2008 for saying he had a university degree when he did not.

Since Stanton, however, there have been a number of developments that have sought to limit immunity. In Hall v Simons[3] the House of Lords abolished advocates' immunity from suit on the basis that it did not consider it made any difference to the possible conflict of duties (to the court and to the client) that an advocate may face. Immunity should do nothing to improve an advocate's respect for his overriding duty to the court and the fact that he respects that duty over the duty to the client couldn't in itself be considered grounds for a negligence claim. In 2000, the Human Rights Act 1998 came into force which imports into UK law Article 6 of the European Convention on Human Rights – the right to a fair trial. Why should the client who has suffered loss at the hands of a negligent expert not have a right to remedy that wrong?

Further erosion to expert immunity has occurred: an expert is no longer immune from costs orders against him if he "acted recklessly or in flagrant disregard of his duties to the court"[4] (although negligence is not sufficient). In addition, if the evidence he gives in court suggests he is not fit to practise, it can be grounds for disciplinary proceedings by the regulatory body.

But the biggest scrutiny of experts' immunity is due in the Supreme Court later his year. On 16 April 2010, the Supreme Court granted a 'leap-frog appeal' in the case of Jones v Kaney[5]. In that case, the expert provided a medical report to the effect that the injured claimant genuinely suffered from post traumatic stress disorder. Following a joint-meeting of experts, however, she signed a statement that the claimant was deceitful. When she tried to retract the statement, the court would not let her and the claimant received a much smaller payout. The expert then tried to have the disgruntled claimant's claim against her struck out on the grounds of her immunity from suit. Bound by Stanton (above), the High Court granted the strike out, but noted that cases since Stanton have sought to limit witness immunity and the Human Rights Act 1998 has since come into force. Given that the Court of Appeal would also be bound by Stanton, the High Court granted the claimant a leap-frog certificate to ask the Supreme Court to hear his appeal.

What will the Supreme Court do? The High Court doubted that the immunity would survive the Supreme Court's scrutiny. Will it apply to experts' immunity the arguments used in Hall to abolish advocates immunity? If he is doing a job, should the expert not expect a civil claim if he does it negligently which causes the client loss? Is an expert who is willing to risk criminal sanctions, cost sanctions, disciplinary proceedings and his reputation to lie in court, likely to act any differently if he also risks a civil suit? Law firms, experts and their professional indemnity insurers will certainly be keeping a close eye on this case.

[1] [1998] EWCA Civ 1176
[2] Raiss v Palermo [2000] All ER (D) 1266
[3] [2002] 1 A.C. 615
[4] Phillips v Symes [2004] EWHC 2330 (Ch)
[5] Paul Wynne Jones v Sue Kaney [2010] EWHC 61 (QB)