Practical Law

When I teach the RICS training for expert witnesses, the room always goes silent when I ask whether expert witnesses should be sued if they are negligent. I then say that, unlike barristers or solicitors, they are immune from such claims.

Expert immunity may be a thing of the past if the Supreme Court upholds the views expressed by a judge who recently allowed an appeal on this point (see Jones v Kaney below).

What is the current position on suing experts?

Expert witnesses cannot be sued in negligence. In Stanton v Callaghan, the parties agreed a lower settlement sum based on negligent advice from a structural engineer on the appropriate remedial works. In rejecting the claim, the judge held that:

“It is important to keep in mind that immunity from suit – where liability would otherwise lie – constitutes an exception to the general law.”

However, a reference to a disciplinary body is permitted. Notably, in General Medical Council v Meadow, which concerned Professor Meadow’s evidence on sudden infant death syndrome, the Court of Appeal held that:

“… there is no principled basis for extending immunity to all fitness to practice proceedings.”

The immunity from suit rule does not extend to experts who act as “expert advisers”, most often at the initial stages of a claim. It is not always easy to say when an expert adviser becomes an expert witness, but the impact of experts on a dispute is often the greatest when they are appointed as expert witnesses and that is where the immunity applies.

So what happened in Jones v Kaney?

On 21 January 2010, judgment was given in Jones v Kaney, a personal injury case. The expert witness, instructed by the claimant, Mr Jones, had signed a joint statement that was radically different from her previous opinion. When questioned, she explained that:

• She had not seen the opposing expert’s reports at the time of her telephone conference with that expert.
• The joint statement, drafted by the opposing expert, did not reflect what she had agreed in the telephone conversation with the opposing expert, but she had felt under some pressure in agreeing it.
• Her true view was that Mr Jones had been evasive rather than deceptive (the word used in the joint statement).
• She was happy for the joint statement to be amended.

Not surprisingly, Mr Jones immediately sought permission to appoint a new expert witness. That permission, however, was never granted and Mr Jones settled his claim for a lower sum. He decided to sue the expert witness for negligence and the only defence she asserted was based on the immunity from suit rule.

Mr Jones’ claim was struck out because the judge felt he was bound by Stanton v Callaghan. The judge, however, gave permission to appeal to the Supreme Court saying that:

“The public benefit of truthful, accurate, reliable and frank evidence to the court is unlikely to need such a broad immunity.”

The judge thought there was a substantial likelihood that it would be held that the public policy justification for the immunity rule could not be supported and that blanket immunity was disproportionate. He even thought the rule was vulnerable to attack on human rights grounds.

What does this mean in practice?

Construction disputes very often rely on evidence from experts on issues such as the existence and causes of defects, the correct quantum of loss and expense claims and delay analysis. Such expert evidence is not only instrumental in deciding these issues, but it will usually play an important role in any decisions on settlement.

Even if the immunity from suit rule is overturned by the Supreme Court, it should not have a significant impact on those expert witnesses who do their job properly (albeit it might affect the professional indemnity (PI) insurance cover experts obtain). Liability will still depend on proving professional negligence and the loss which flowed from such negligence.

Having said that, overturning the rule may ensure expert witnesses take more care when they are giving their opinion, which would avoid the lamentable situation which arose in Jones v Kaney. Further, as a matter of principle (and as barristers were stripped of their immunity by the House of Lords in 2000 (Arthur Hall v Simons)), it is difficult to see why the same rules should not apply to expert witnesses. After all, on the rare occasions when an expert witness is negligent, it will be useful to have an effective remedy.

…and even if the appeal does not proceed on this case, this decision suggests that the days of expert immunity are numbered.