The witness protection scheme

It is a well-established principle of law in England and Wales that an expert witness cannot be sued in relation to evidence given during civil proceedings. As stated by Lord Justice Chadwick in his 2000 judgment on Stanton vs Callaghan, the principle was founded on the need to “avoid tension between an expert witness’ desire to assist the court and fear of the consequences of a departure from advice”, and to ensure an expert witness owes a duty to the court only.

The question of whether expert witnesses continued to enjoy immunity from suit came before Mr Justice Blake in the High Court on 21 January 2010, in the case of Jones vs Kaney. The claimant was someone who had previously launched a personal injury claim after he was in a road traffic accident. Part of the claim was for psychiatric injury, and the claimant engaged the defendant to act as his expert psychiatrist.

The defendant signed an experts’ joint statement that cast doubt on the claimant’s claim for psychiatric injury, but she subsequently said the joint statement did not accurately reflect what she had agreed with the other expert and that she had signed it because she felt “under pressure”. This resulted in the claimant recovering a much lower level of damages than would have been recovered had the claim for psychiatric injury been maintained.

Subsequently, the claimant issued proceedings against the defendant for negligence. The defendant applied for the claim be struck out on the grounds that she was protected from suit following Stanton vs Callaghan.

But the claimant raised numerous arguments as to why expert witnesses should no longer continue to enjoy immunity from suit. He argued that the public policy justification for expert immunity was disproportionate, and that it would be unjust if the law remained such that an injured party were left with no remedy for losses suffered as a result of the actions of an expert witness.

The claimant argued that Stanton vs Callaghan preceded the Human Rights Act 1996, section six of which provides that public authorities are obliged to act in a manner compatible with the European Convention on Human Rights. Article six of the convention gives a right to a fair trial, and the claimant argued that a blanket immunity from suit contradicted this.

The claimant argued it made no sense that a duty of care should evaporate once proceedings were issued

He argued that since an expert witness who gave negligent advice would be subject to sanctions from their professional body and this was “likely to have a considerably more chilling effect than the insurable risk of civil proceedings for negligent advice in civil proceedings”, there was no good reason to maintain immunity from suit on public policy grounds.

Finally, the claimant also argued it made no sense that a duty of care, which an expert witness owed his client before proceedings were issued, should evaporate once proceedings were issued and had become sufficiently well advanced.

The court said it was bound by the decision in Stanton vs Callaghan, and struck out the claim on the grounds that the defendant was immune from suit. However, it expressed sympathy with the claimant, and concluded 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”.

The court, therefore, granted the claimant leave to leapfrog the Court of Appeal and to launch an appeal in the Supreme Court to challenge the position in Stanton vs Callaghan.

Expert witnesses will await the Supreme Court’s decision with interest. Any erosion of the doctrine of expert immunity could have wide implications in the building industry, and may result in engineers, architects, surveyors and other consultants carefully considering whether to act as expert witnesses. Those who continue to accept such instructions may find themselves performing a balancing act in complying with their duty not to mislead the court and not exposing themselves to a claim in negligence from the party instructing them. Expert witnesses may also find any change to the law that erodes the doctrine of immunity from suit would result in a rise in their professional indemnity insurance premiums.