“The End of Expert
Immunity”
Philip Boulding Q.C.
Keating Chambers
What if the expert
gets it wrong?
The previous position in the UK
Limited immunity from proceedings for
professional negligence, for experts from any
discipline, until just over a month ago.
“A feature of the trial is that in the public interest all those directly
taking part are given civil immunity for their participation … Thus
the court, judge and jury, and the witnesses including expert
witnesses are granted civil immunity. This is not just privilege for
the purposes of the law of defamation but is a true immunity.”
Lord Hobhouse in Arthur JS Hall & Co v Simons [2002] 1 AC 615
What did it extend to?
 Evidence given by the expert in court or
arbitration;
and
 To work which was preliminary to giving
such evidence.
So what was protected?

The production or approval of any
report

The content of the experts’ joint
agreement
Authority - Stanton v Callaghan [C.A.] [1999]
Confirmation
Stanton confirmed an immunity which had
existed for over 400 years – see Cutler v Dixon
(1585).
Circumstances in which immunity
was established
What was not covered by the
immunity?
 Advising the client on merits of its case,
particularly if no proceedings
commenced;
 To advice as to whether the expert was
qualified to advise at all.
Authority - Palmer v Durnford Ford [1992].
No immunity in respect of criminal
charges such as perjury
No immunity in respect of
disciplinary proceedings or wasted
costs orders
What was the basis for this limited
immunity?
Essentially public policy arguments, which
included:

Inhibition from giving truthful and fair
evidence in court [or arbitration];

The orderly management and conduct of the
trial; and

To avoid a multiplicity of actions.
Illustration
In Landall v Faulkner [1994] Holland J. commented on the
purpose of the immunity, in the context of experts’ meetings, as
follows:
“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.”
Why has the position changed?
The justification for granting expert
witnesses any legal immunity was
very recently considered in the UK
in Jones v Kaney
The facts
(which were assumed to be true for the purpose of the hearing).
•
•
•
•
•
•
•
•
The applicant psychologist, Kaney, applied for summary
judgment striking out a claim for negligence by the
respondent Jones.
Kaney had been instructed to prepare an expert report in
relation to a claim by Jones for damages sustained in a road
traffic accident. Kaney's initial report suggested a diagnosis
of post traumatic stress disorder (“PTSD”) + associated ills.
An expert for the defence concluded that Jones was
exaggerating his physical symptoms and, as a result, a joint
statement was ordered.
The joint statement was signed by both experts but was very
damaging to Jones's case – no PTSD + Jones deceitful.
Kaney had signed the joint statement without any comment
or amendment after telephone discussion.
No option but to settle for a much smaller sum.
Jones issued proceedings for negligence
Kaney's defence was a plea of witness immunity
Success for Kaney at first instance
on the basis that an expert witness
enjoyed immunity from suit
following Stanton v Callaghan
Qualification
Judge doubted whether Stanton v Callaghan was good law
and granted a ‘leapfrog’ appeal to the Supreme Court.
“I have doubts as to whether it will continue to remain [good
law] for the reasons canvassed by the Claimant … I conclude
that there is a substantial likelihood that on re-examination
by a superior court, with the power to do so, it will emerge
that the public policy justification for the rule cannot support
it.”
Per Blake J at [37]
Supreme Court gave judgment on
30 march 2011
Majority decision [5/2] removes the
expert’s limited immunity
Doubts even before Jones v
Kaney – for 3 reasons:
1
Experts’ immunity should not survive in
light of HL decision in Hall v Simons
[2000] in which a barrister’s immunity
from suit was abolished
2
The analogy between general witness
immunity and expert witness immunity
was not valid
3
Experts’ immunity was inconsistent with
the right to a fair trial enshrined various
human rights legislation in the UK
[Article 6 of the European Convention on
Human Rights].
(1) the advocate immunity principle:
Hall v Simons
•
CA’s reasoning in Stanton v Callaghan
for applying the principle of immunity
to expert witnesses was based
substantially upon the advocate
immunity principle – immunity of suit
in the conduct of litigation.
•
This principle had been articulated in
the earlier cases of Rondel v Worsley
[H.L.] [1969] and Ali v Mitchell and Co
[H.L.] [1980].
Justification:
•
Lack of a contractual relationship; and
•
Public policy [re-trying original actions]
(2) expert witness/general witness
immunity
•
Witness immunity rule confers an
absolute immunity on witnesses,
lawyers and judges in respect of
anything said in court.
•
Witness immunity has also been
extended to statements made out of
court in the course of preparing
evidence to be given in court.
Rationale
Analogy:

In the past, an analogy has been drawn between
the immunities enjoyed by those who participate
in court proceedings and the immunity granted
towards paid expert witnesses.

Specifically, it was said that a similar immunity
against proceedings for negligence is necessary to
enable experts to do two things:
1. To fulfill their duty to the court properly;
2. Preparing statements made out of court in
the course of preparing evidence to be
given in court.
Criticism
(3) Right to a fair trial
•
Recent increased appreciation of the
importance of the principles of human
rights law.
•
Decision in Stanton v Callaghan prior to the
coming into force of the Human Rights Act
1998 which enshrines the right to a fair trial
•
HK Bill of Rights gives people in Hong Kong
a similar right
Osman v UK (1997)

Decision of the European Community Court

Immunities of the kind enjoyed by experts
preventing claimants seeking damages in
tort may be contrary to the right to a fair
trial if on the facts of the case they can be
said to be “disproportionate”
Result:
•
Debate as to whether existing rules on
restrictions on liability, that were
previously considered as a class of
immunity, needed to re-examined.
•
Consequence - the decision in Jones v
Kaney - Supreme Court overturned
the first instance ruling to remove
protections previously afforded to
expert witnesses
•
In particular, the Supreme Court decided
that public policy no longer justified
conferring on an expert witness any
immunity from liability in negligence in
relation to the performance of his duties in
that capacity.
•
The reasons that were previously said to
have justified the immunity were considered
[save for Human Rights angle, which dealt
with in passing only].
•
The majority of the Supreme Court clearly
influenced by the fact that advocates no
longer enjoyed immunity.
As to the previous public policy
arguments which had
impressed….
Inhibition of performance
As to absent immunity an expert’s performance would be
inhibited, Lord Philips said in the context of the immunity
previously enjoyed by barristers
“It was always believed that it was necessary that barristers
should be immune from suit in order to ensure that they
were not inhibited from performing their duty to the court.
Yet removal of their immunity has not in my experience
resulted in any diminution of the advocate’s readiness to
perform that duty.”
And
“It would be quite wrong to perpetuate the immunity of
expert witnesses out of mere conjecture that they will be
reluctant to perform their duty to the court if they are not
immune from suit for breach of duty”.
Lord Collins:
“A conscientious expert will not be deterred
by the danger of civil action by a
disappointed client, any more than the same
expert will be deterred from providing
services to any other client. It is no more (or
less) credible that an expert will be deterred
from giving evidence unfavourable to the
client’s interest by the threat of legal
proceedings than the expert will be
influenced by the hope of instructions in
future cases”.
Emphasised that the most likely effect of
potential liability on the part of the expert
would be greater care in preparing the initial
report on the client's case, rather than to
inhibit frankness at a later stage, and Collins
said:
“The practical reality is that, if the removal of
immunity would have any effect at all on the
process of preparation and presentation of
expert evidence …
It would tend to ensure a greater degree of
care in the preparation of the initial report or
joint report”
 The court referred to the fact that like the
advocate, the expert witness owes a duty
to exercise reasonable skill and care in
providing services to the client.
BUT
 The majority emphasised that this duty
includes, and does not conflict with:


The overriding duty to assist the
court
Which may require the expert (or
advocate) to act in a way which
does not advance the client’s case
Importantly Lord Phillips rejected any suggestion
that the expert’s duties to his client and the court
were different:
“[the expert witness and advocate both] undertake a
duty to provide services to the client. In each case
those services include a paramount duty to the court
and the public, which may require the advocate or the
witness to act in a way which does not advance the
client’s case. The advocate must disclose to the court
authorities that are unfavourable to his client. The
expert witness must give his evidence honestly, even
if this involves concessions that are contrary to his
client’s interests. The expert witness has far more in
common with the advocate than he does with a
witness of fact”.
Experts can take some comfort from Lord
Dyson who stated:
“If the expert gives an independent and
unbiased opinion which is within the range
of reasonable expert opinions. He will have
discharged his duty both to the court and
his client.”
General Witness Analogy
•
•
Court not impressed.
Lord Phillips emphasised that:
“The object of the immunity is not to
protect those whose conduct is open to
criticism, but those who would be subject
to unjustified and vexatious claims by
disgruntled litigants”.
Lord Phillips was impressed by the fact that it was not easy
to sue an expert:
“It is easy enough for the unsuccessful litigant to allege, if
permitted, that a witness of fact who has given evidence
against him was guilty of defamatory mendacity. It is far
less easy for a lay client to mount a credible case that his
expert witness has been negligent”.
Human rights
Lord Kerr may well have such considerations in mind when
he expressed the view that [save in exceptional
circumstances] every right should have a remedy:
“It has not been disputed that an expert witness owes a duty
to the client by whom he has been retained. Breach of that
duty should, in the normal course, give rise to a remedy.
That is the unalterable back drop against which the claim to
immunity must be made”.
Dissenting speeches of Hope and
Hale
Viewed issue from opposite perspective
Immunity was long established principle
such that any exception to it, and not the
rule itself, should be justified.
No basis for removing immunity
Should be left to Parliament
Were openly critical of majority decision
Lady Hale said:
" … it does not seem to me self evident that
the policy considerations in favour of
making this exception to the rule are so
strong that this Court should depart from
previous authorities to make it. To my
mind, it is irresponsible to make such a
change on an experimental basis. This
seems to me self-evidently a topic more
suitable for consideration by the Law
Commissioner and reform, if thought
appropriate, by Parliament rather than by
this Court."
Lord Hope concluded:
" … I doubt whether it is right that we
should proceed in this way only on the
basis of assumption, which is really all we
have to go on in this case … The lack of a
secure principled basis for removing the
immunity from expert witnesses, the lack
of a clear dividing line between what is to
be affected by the removal and what is
not, the uncertainties that this would
cause and the lack of reliable evidence to
indicate what the effects might be suggest
that the wiser course would be to leave
matters as they stand."
What is unaffected?




Absolute privilege of expert witnesses in
respect of claims in defamation
The immunity of other witnesses in
respect of litigation
Expert witness cannot be sued by the
other side
No suit against court appointed expert
Effects and implications of and
concerns arising out of the
decision

Need for actual/prospective expert witnesses to be aware of changes in the law;

Need for experts to understand and comply with duties of skill and care to the client
and overriding obligation to the court [arbitrator].

Less experts (which could be a problem in a small community like Hong Kong)?

No more ‘hired guns’ or insufficiently adept experts?

Less entrenched positions so less litigation/arbitration? Or will experts be more
inclined to stick to their original positions?

Experts should be cautious of the views they express at the outset of the case lest
they be embarrassed (even sued ???) at a later date.

Less ‘bullish’ and more caveated opinions (and frustration for client ????).

Discouragement of underperforming experts and excessive delegation– surely
welcome?

‘Satellite’ litigation?

Who would be a jointly instructed expert (with contractual duties to both parties)?

Need for insurance/more insurance and higher premiums

When will limitation run from?
How can an expert seek to protect
himself?







Inform insurers of exactly what he is doing
Need for ‘bespoke’ case sensitive insurance?
Agree contractual limits/exclusions to exposure derived
from expert assignments for significant projects (Cf.
accountants/LLPs)
BUT take into account the UCTA 1977 (or HK equivalent,
the Control of Exemptions Ordinance)
Be comfortable with opinions and resist temptation to
change opinion under pressure from client/lawyers
Be cautious in meetings with opposing expert and when
agreeing joint statements
Vital to explain to client the proposed departure from an
earlier opinion before signing joint statement or making
concessions on behalf of client
What is the position in Hong
Kong? Cf., for example,
Singapore
THE END
THE END