Much has been written about the anticipated impact that the Supreme Court’s decision in Jones v Kaney will have on expert witnesses and the evidence they give, whether they will need to change their behaviour in court or in the way they write their reports. Going forward, without the protection of expert immunity, it will be important that expert witnesses are aware that they are potentially liable to their clients for a breach of duty, even where the work relates to preparation for or involvement in legal proceedings.
To avoid liability for a breach of duty, an expert witness should give an independent and unbiased opinion, which is within the range of reasonable expert opinions. If the expert does so, he will have discharged his duty both to the court and his client. Some may argue that an expert witness should always have done this.
Against this background, at the SCL talk on 7 June 2011, HHJ Thornton QC spoke under the title “Construction experts’ expertise and its regulation after Jones v Kaney“. The meeting was presided over by Coulson J. Both are TCC judges and both are familiar with the frequent and heavy use that parties litigating in the TCC make of expert evidence in construction and engineering disputes.
Experts have been with us for many years
HHJ Thornton QC reminded the audience that the English courts have used experts for over 400 years but, despite that, it is still easy to lose sight of what an expert is.
He cantered through the history of using experts in construction disputes, managing to squeeze in reference to Isambard Kingdom Brunel (as chief engineer and project manager on the Great Western Railway), the fact that barristers lost their immunity in 2000, the current requirements of CPR Part 35, its practice directiom and the protocol for instructing experts and finally arrived at Jones v Kaney, quoting Dyson LJ:
“It is easy to assert that professional persons will refuse to act as expert witnesses if they cease to enjoy immunity… I am not persuaded that the possibility of being sued if they are negligent is likely to be a significant factor in many cases in determining whether a person will be willing to act as an expert. Negligence is not easy to prove against an expert witness, especially in relation to what he or she says in the heat of battle in court.”
Issues arising from Jones v Kaney
HHJ Thornton QC himself and the audience raised a number of issues, which may be summarised as follows:
- An expert owes the same duties to the tribunal, whatever the form of that tribunal. Thus, the loss of immunity applies in adjudication and arbitration proceedings just as much as it applies in court proceedings. (This was a factor identified in Lady Hale’s dissenting judgment as “how far beyond ordinary civil proceedings is this exception to go?”.)
- An expert is required to comply with his own professional standards. The RICS‘ guidance to its members when acting as experts was held out as being exemplary and recommended guidance for every expert, regardless of their discipline.
- The expert’s duty may extend to an employee if that employee is giving evidence of an expert nature. (This was a factor identified in Lord Hope’s dissenting judgment as the “employee with specialist skills”.)
- An expert’s duty is the same, whether the expert is party-appointed, a joint expert or a court-appointed expert (and see Lord Hope’s dissenting judgment).
- Parties should ensure that the person they appoint to act as an expert is able to give the court “skilled and competent expert opinion evidence” (Dyson LJ). This should eliminate the possibility of an expert breaking down in court under cross-examination, which may happen with an inexperienced expert. Parties can limit the likelihood of this in the stages that precede a court appearance.
- Experts should take care before trying to exclude liability in their contracts. As Coulson J noted, the courts are generally happier dealing with limitations of liability, rather than exclusions of liability.
- If you have a claim for professional negligence against an expert, don’t forget that adjudication may be an option. When it comes to pleading the claim, expert evidence will be necessary to support it, especially if the claim proceeds through the courts.
- Any party who “encourages” an expert not to sign a joint statement without first referring back to them is (potentially) putting the expert in breach of CPR Part 35 and the TCC Guide.