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THE LIABILITY OF THE EXPERT TO THOSE WHO APPOINT HIM

What if the expert gets it wrong?

The Present Position


Experts have a limited immunity from proceedings for professional negligence. This immunity extends to evidence given by the expert in court or arbitration and to work which is preliminary to giving such evidence. The production or approval of his or her report would thus be protected, as would the content of the experts joint agreement: Stanton v Callaghan [1999] 2 WLR 745. The immunity does not extend to work done for the principal purpose of advising the client as to the merits of their case, particularly if proceedings have not been started, or to advice as to whether the expert is qualified to advise at all: Palmer v Durnford Ford [1992] QB 483. The public policy arguments which have been relied upon to confer immunity upon experts include: (1) Immunity should only be given to an expert where to deny it would mean that he would be inhibited from giving truthful and fair evidence in court (see Palmer v Durnford at page 488, Stanton v Callaghan at pages 774-776); and The immunity must be necessary for the orderly management and conduct of the trial (see Stanton v Callaghan at page 768, per Chadwick LJ and pages 773-774, per Otton LJ).

(2)

In Landall v Dennis Faulkner and Alsop [1994] 5 Med LR 268, Holland J commented on the purpose of the immunity, in the context of experts meetings, as follows:

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In my view, the public interest in facilitating full and frank discussion between experts before trial does require that each should be free to make proper concessions without fear that any departure from advice previously given to the party who has retained him will be seen as evidence of negligence. That, as it seems to me, is an area in which public policy justifies immunity. The immunity is 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.

Possible Developments
The White Book (Spring 2002), at paragraph 35.12.3, states: But whether this immunity will survive without challenge seems questionable in the light of the decisions of the court in Stevens v Gullis [1999] BLR 394 when the incompetence of an expert witness effectively lost his instructing party the case, and in Hall v Simons [2000] 3 WLR 543, when the House of Lords removed the long-established principle of advocates immunity, particularly if and when an expert fails to comply with his duty to assist the court, e.g. by ignoring the court orders in the particular case. In Stevens v Gullis, the Defendants expert breached several of the Courts directions, as well as CPR, Part 35, Practice Direction. The judge therefore debarred the Defendant from calling him and gave judgment against the Defendant. On appeal, the Court of Appeal upheld the judges orders and Lord Woolf MR commented that the expert had demonstrated by his behaviour that he had no concept of the requirements placed upon him by the CPR. Another case where the experts conduct fell way below the necessary standards was Pearce v Ove Arup (2 November 2001) where Jacob J commented, at paragraph 60: At the end of his report, Mr Wilkey said he understood that duty. I do not think he did. He came to argue a case. Any point which might support that case, however flimsy, he took. Nowhere did he stand back and take an objective view as an architect as to how the alleged copying could have been done. Mr Wilkey bears a heavy responsibility for this case ever coming to trial with its attendant cost, expense and waste of time It might be considered obvious that the parties who instructed the experts in Stevens v Gullis and Pearce v Ove Arup could sue them for their conduct in those cases. Unfortunately, the case law is not yet sufficiently developed on this matter to provide such a definitive answer.

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In the past, the courts have found that the public policy underlying advocates immunity offers assistance: see, for example, Stanton v Callaghan [1999] 2 WLR 745, 759, Palmer v Durnford Ford [1992] QB 483, 488 and M v Newham LBC [1994] 2 WLR 554, 570. In Arthur Hall v Simons [2000] 3 WLR 543, the House of Lords reconsidered the immunity of an advocate in court proceedings and, at page 551, Lord Steyn considered that the legal policy which seeks to encourage freedom of speech in court so that the court will have full information about the issues in the case has little, if anything, to do with any legal policy which requires immunity from actions for negligent acts. Indeed, Lord Steyn, without saying whether he agreed or not, referred to Peter Cane who argues in Tort Law and Economic Interests (2nd ed 1996) that paid expert witnesses ought to be answerable to their clients for the way they perform their professional duties. Lord Steyn then went on to consider whether removal of an advocates immunity would undermine his overriding duty to the court and concluded that it would not: see pages 552-553. In particular, he said that if the advocates conduct was bona fide dictated by his perception of his duty to the court, there would be no possibility of the court holding him to be negligent: page 553F. There does not appear to be any reason why this logic should not apply to an expert witness. Turning to the opinions of the other Judges, Lord Hobhouse stated, at pages 611-612: It is illuminating to consider the conceptual basis in the trial process for the witness immunity. It is that the witness, although called by a party, is giving evidence to the court. The witness's duty is to tell the truth to the court regardless of the interests of the party who has called him or who is asking him questions. This same scheme is spelled out in the new Civil Procedure Rules regarding expert witnesses. An expert witness is in a special position similar to that of the advocate. He is selected and paid by the party instructing him. Part of his duties include advising the party instructing him. If that advice is negligently given the expert, like the lawyer, is liable. But once the expert becomes engaged on providing expert evidence for use in court (C.P.R., r. 35.2; Stanton v. Callaghan [2000] 1 Q.B. 75) his relationship to the court becomes paramount as set out in the Civil Procedure Rules and he enjoys the civil immunity attributable to that function. Lord Hoffmann came to a similar conclusion. Therefore, it appears that there may be two possible approaches which could be adopted in relation to an experts immunity:

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(1)

An expert is always immune from suit in relation to his oral and written evidence to the court (applying the analysis of Lords Hoffmann and Hobhouse); or An expert is not immune from suit but if his conduct was bona fide dictated by his perception of his duty to the court, there would be no possibility of the court holding him to be negligent (applying Lord Steyns analysis).

(2)

The latter approach is consistent with the general view of the House of Lords in Arthur Hall v Simons that the possibility of actions in negligence would not distract an advocate from the performance of his duties to the court. It is also consistent with the proposition that each case should depend on its own facts: see Stanton v Callaghan at page 772 and Palmer v Durnford at page 489. Indeed, it seems highly arguable that where the experts duties to the court mirror his duties to the client he should receive no immunity in respect of their performance; there can be no conflict between the duty to the court and the duty to the client. This argument is highly attractive because, after all, the expert is retained (often for a considerable amount of money) by a party to the action.

Post Hall v Simons


Three months after the House of Lords gave judgment in Arthur Hall v Simons, Eady J considered the liability of an expert for his evidence in court in Raiss v Palmano [2000] All ER (D) 1266, (2002) 18 Con LJ 348. The specific criticisms of the expert witness in the trial to which Raiss related manifested themselves when the expert, in cross-examination, conceded that: (1) Although he had held himself out as expert on open-market property transactions in central London, he was not expert on the Covent Garden property market; Contrary to his stated qualifications, he was not in fact on the Panel of Arbitrators to the RICS.

(2)

Eady J held that a witness is entitled to immunity for reasons of public policy even in respect of evidence that turns out to have been dishonest. He stated that: One reason underlying the immunity is that there should be no undue inhibition upon a witness being prepared to resile from his earlier statements if he subsequently recognises them to be wrong, for whatever reason, or to need qualification: see, for example, the judgment of Chadwick LJ [in Stanton v Callaghan]. If a resiling witness was immune only in respect of the change of heart, but could still be sued in respect of the original statement resiled from, that situation would hardly serve the public policy objective.

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Eady J also held that there was no reasonable prospect of proving that the specific representations were causative of any damage. However, it is stressed that Eady Js judgment in Raiss v Palmano made no reference at all to Hall v Simons. It may not have even been cited in argument. For this reason alone, this judgment has to be treated with extreme caution. Post Hall v Simons, an expert witness is still immune from suit in respect of actions in defamation. The expert is entitled still to rely on the defence of privilege which applies to actions in defamation: see NLJ (22/2/02) Vol 152, No 7020, page 272. That proposition seems quite correct and is consistent with Lord Steyns analysis in Hall v Simons (at page 551).

Conclusion
Despite Raiss v Palmano, it still seems possible that there will be a restriction of the expert witness immunity. However, the extent of that restriction is far from clear and parties would be well advised to make sure that the expert that they select is competent in the first place.

Jonathan Selby Keating Chambers 15 Essex Street, London, WC2R 3AA

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