One of the most surprising things about expert witness immunity from suit, which has just been abolished by a majority decision of the Supreme Court, with two of the seven judges dissenting, is that it has never been challenged until now. Case law can be cited back to 1585, long before it was recognised that there might be liability for negligent misstatement.
It has always been assumed over the past 400 years or so that the same immunity from suit that applies to witnesses summoned to give evidence in court extends to the ‘hired guns’, as expert witnesses have been referred to in the Supreme Court judgement (Jones v Kaney [2011] UKSC13). The general immunity of witnesses in court is unaffected, but expert witnesses now have to grapple with some thorny issues, and need to check their professional indemnity cover.
The threat is of being sued by your clients for negligence when the case fails to go their way, which is what happened in this case that arose from a motorcycle accident. The motorcyclist appointed a clinical psychologist who initially diagnosed post traumatic stress syndrome but later signed a joint agreement with the other side’s psychologist expert witness that the motorcyclist was exaggerating his symptoms. The details are far less important than the implications for expert witnesses.
Construction cases are barely imaginable without experts, and the immediate fear is whether they will be hard to recruit now they are laid open to being sued. But the Supreme Court saw no danger of experts being dissuaded. The immunity of advocates was removed some ten years ago and there has been no upsurge in cases of them being sued as a result. The duty of an expert witness is to the court and if they behave conscientiously and professionally they should have no reason for fear, it is being said. Construction professionals run these risks in their day to day business so should have nothing new to worry about.
This might be true, but some issues remain. Dissenting judge Lord Hope, for example, asked what would happen about the joint or the court appointed expert, or witnesses who might not be experts, but can be said to owe duties to a party to the litigation or those who may be aff ected by what they say?
Is the immunity to be removed from a company director who owes a duty to the company but is said to have made an inexcusable error when giving evidence on its behalf?
What about the employee who gives evidence on his employer’s behalf and is said to have caused loss to his employer because of the negligent way he presented his evidence? How do we determine who is an expert?
Dissenting judge Lady Hale also revealed a fair depth of opposition, to the way the decision has been arrived at in particular. She said: ‘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 Commission and reform, if thought appropriate, by Parliament rather than by this Court.’
Witness immunity in Scotland has been devolved to the Scottish authorities so a fuller examination of the issues by the Scottish Law Commission might be forthcoming. The debate might not be quite over yet.
Nick Barrett
Editor