““The End of Expert The End of Expert Immunity”Immunity”

Philip Boulding Q.C. Philip Boulding Q.C.

Keating ChambersKeating Chambers

What if the expert What if the expert gets it wrong?gets it wrong?

The previous position in the UKThe 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? 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?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]

ConfirmationConfirmation

Stanton confirmed an immunity which had existed for over 400 years – see Cutler v Dixon (1585).

Circumstances in which immunity Circumstances in which immunity was established was established

What was not covered by the What was not covered by the immunity? 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 No immunity in respect of criminal charges such as perjurycharges such as perjury

No immunity in respect of No immunity in respect of disciplinary proceedings or wasted disciplinary proceedings or wasted

costs orderscosts orders

Essentially public policy arguments, which Essentially public policy arguments, which included: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.

What was the basis for this limited What was the basis for this limited immunity? immunity?

Illustration 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?Why has the position changed?

The The justification for granting expert justification for granting expert witnesses any legal immunity was witnesses any legal immunity was very recently considered in the UK very recently considered in the UK

in in Jones v KaneyJones v Kaney

(which were assumed to be true for the purpose of the hearing).(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

The factsThe facts

Success for Success for KaneyKaney at first instance at first instance on the basis that an expert witness on the basis that an expert witness

enjoyed immunity from suit enjoyed immunity from suit following following Stanton v CallaghanStanton v Callaghan

QualificationQualification

Judge doubted whether Judge doubted whether Stanton v CallaghanStanton v Callaghan was good law was good law and granted a ‘leapfrog’ appeal to the Supreme Court. 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 Supreme Court gave judgment on 30 march 201130 march 2011

Majority decision [5/2] Majority decision [5/2] removesremoves the the expert’s limited immunity expert’s limited immunity

Doubts even before Doubts even before Jones v Jones v KaneyKaney – for 3 reasons: – for 3 reasons:

Experts’ immunity should not survive in Experts’ immunity should not survive in light of HL decision in light of HL decision in Hall v SimonsHall v Simons [2000] in which a barrister’s immunity [2000] in which a barrister’s immunity

from suit was abolishedfrom suit was abolished

11

The analogy between general witness The analogy between general witness immunity and expert witness immunity immunity and expert witness immunity

was not validwas not valid

22

Experts’ immunity was inconsistent with Experts’ immunity was inconsistent with the right to a fair trial enshrined various the right to a fair trial enshrined various

human rights legislation in the UK human rights legislation in the UK [Article 6 of the European Convention on [Article 6 of the European Convention on

Human Rights].Human Rights].

33

(1)(1) the advocate immunity principle: the advocate immunity principle: Hall v SimonsHall 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].

• Lack of a contractual relationship; and Lack of a contractual relationship; and

• Public policy [re-trying original actions]Public policy [re-trying original actions]

Justification: Justification:

(2)(2) expert witness/general witness expert witness/general witness immunityimmunity

• 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.

RationaleRationale

Analogy: 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.

CriticismCriticism

(3)(3) Right to a fair trialRight 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)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”

• 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

Result:Result:

• 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 As to the previous public policy arguments which had arguments which had

impressed….impressed….

Inhibition of performanceInhibition 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”.

“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”.

Lord Collins:Lord Collins:

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 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 rightsHuman 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:Lady Hale said:

" … it does not seem to me self evident that " … it does not seem to me self evident that the policy considerations in favour of the policy considerations in favour of making this exception to the rule are so making this exception to the rule are so strong that this Court should depart from strong that this Court should depart from previous authorities to make it. To my previous authorities to make it. To my mind, it is irresponsible to make such a mind, it is irresponsible to make such a change on an experimental basis. This change on an experimental basis. This seems to me self-evidently a topic more seems to me self-evidently a topic more suitable for consideration by the Law suitable for consideration by the Law Commissioner and reform, if thought Commissioner and reform, if thought appropriate, by Parliament rather than by appropriate, by Parliament rather than by this Court."this Court."

Lord Hope concluded:Lord Hope concluded:

" … I doubt whether it is right that we should " … I doubt whether it is right that we should proceed in this way only on the basis of proceed in this way only on the basis of assumption, which is really all we have to assumption, which is really all we have to go on in this case … The lack of a secure go on in this case … The lack of a secure principled basis for removing the immunity principled basis for removing the immunity from expert witnesses, the lack of a clear from expert witnesses, the lack of a clear dividing line between what is to be dividing line between what is to be affected by the removal and what is not, affected by the removal and what is not, the uncertainties that this would cause the uncertainties that this would cause and the lack of reliable evidence to and the lack of reliable evidence to indicate what the effects might be suggest indicate what the effects might be suggest that the wiser course would be to leave that the wiser course would be to leave matters as they stand." matters as they stand."

What is unaffected?What is unaffected?

Absolute privilege of expert witnesses in Absolute privilege of expert witnesses in respect of claims in defamationrespect of claims in defamation

The immunity of other witnesses in The immunity of other witnesses in respect of litigationrespect of litigation

Expert witness cannot be sued by the Expert witness cannot be sued by the other sideother side

No suit against court appointed expertNo suit against court appointed expert

Effects and implications of and Effects and implications of and concerns arising out of the concerns arising out of the

decisiondecision

Need for actual/prospective expert witnesses to be aware of changes in the law;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 Need for experts to understand and comply with duties of skill and care to the client and and overridingoverriding obligation to the court [arbitrator]. obligation to the court [arbitrator].

Less experts (which could be a problem in a small community like Hong Kong)?Less experts (which could be a problem in a small community like Hong Kong)?

No more ‘hired guns’ or insufficiently adept experts?No more ‘hired guns’ or insufficiently adept experts?

Less entrenched positions so less litigation/arbitration? Or will experts be more Less entrenched positions so less litigation/arbitration? Or will experts be more inclined to stick to their original positions?inclined to stick to their original positions?

Experts should be cautious of the views they express at the outset of the case lest 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.they be embarrassed (even sued ???) at a later date.

Less ‘bullish’ and more caveated opinions (and frustration for client ????).Less ‘bullish’ and more caveated opinions (and frustration for client ????).

Discouragement of underperforming experts and excessive delegation– surely Discouragement of underperforming experts and excessive delegation– surely welcome?welcome?

‘‘Satellite’ litigation?Satellite’ litigation?

Who would be a jointly instructed expert (with contractual duties to both parties)?Who would be a jointly instructed expert (with contractual duties to both parties)?

Need for insurance/more insurance and higher premiumsNeed for insurance/more insurance and higher premiums

When will limitation run from?When will limitation run from?

How can an expert seek to protect How can an expert seek to protect himself?himself?

Inform insurers of exactly what he is doingInform insurers of exactly what he is doing Need for ‘bespoke’ case sensitive insurance?Need for ‘bespoke’ case sensitive insurance? Agree contractual limits/exclusions to exposure derived Agree contractual limits/exclusions to exposure derived

from expert assignments for significant projects (Cf. from expert assignments for significant projects (Cf. accountants/LLPs)accountants/LLPs)

BUT take into account the UCTA 1977 (or HK equivalent, the BUT take into account the UCTA 1977 (or HK equivalent, the Control of Exemptions Ordinance)Control of Exemptions Ordinance)

Be comfortable with opinions and resist temptation to Be comfortable with opinions and resist temptation to change opinion under pressure from client/lawyerschange opinion under pressure from client/lawyers

Be cautious in meetings with opposing expert and when Be cautious in meetings with opposing expert and when agreeing joint statementsagreeing joint statements

Vital to explain to client the proposed departure from an Vital to explain to client the proposed departure from an earlier opinion before signing joint statement or making earlier opinion before signing joint statement or making concessions on behalf of client concessions on behalf of client

What is the position in Hong What is the position in Hong Kong? Cf., for example, Kong? Cf., for example,

SingaporeSingapore

THE ENDTHE END

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