Concentrating their minds

We all know the importance of expert evidence in construction disputes. If you ask those who instruct and pay experts whether they deserve protection from negligence at the trial, most would say “no”. Unfortunately, the law says “yes”, but this is set to change.

In the Meadow case, while the Court of Appeal said Mr Justice Collins got it wrong, we can understand his point of view. He was influenced by the shortage of medical practitioners prepared to give evidence in such cases. Thankfully, this isn’t a problem in construction – a veritable industry has grown up around expert witnesses.

The Meadow case is a reminder of the dangers of experts straying outside their expertise, as the professor did in giving evidence on statistics. However, the latest judgment shouldn’t fool construction experts. The immunity, as it is, is being eroded – a point that is obscured by the publicity that Meadow has attracted. Here’s where I part company with Tony Bingham, above, and doubt the solidity of his “rock solid no-go” for experts being sued.

The Court of Appeal only decided experts have no immunity from disciplinary proceedings regarding complaints made by affected parties. It didn’t review the immunity that protects an expert from an action for negligence in giving evidence at a trial.

There are many reasons to doubt whether the immunity will survive. First, the European Court of Human Rights has told English courts that providing immunity from suit may be contrary to the right to a fair trial. The aim of such a rule must be considered against the merits of the particular case. A blanket immunity doesn’t allow this.

The public policy justifications for the immunity are twofold: The first is that experts’ duties are to the court – they shouldn’t have to worry about legal action if they change their minds. The second is that if an expert’s negligence affects the outcome of a trial, this may cause a later court to reconsider the judgment.

However the same reasons were used to support advocate’s immunity, which was abolished in 2000. Why should experts be different from advocates, who can be sued for negligence?

A case last year further questioned the longevity of immunity. It was suggested that orders for costs may be made against expert witnesses who act in flagrant and reckless disregard of their duties. Although this is more serious than negligence, it is inconsistent with the current immunity rule.

Last year’s Experts’ Protocol, which codified standards for expert witnesses, made it more likely that courts would impose costs orders and sanctions against miscreant experts – perhaps the most significant of recent moves to make the expert witness business more professional.

Judges seem increasingly willing to criticise expert witnesses, reflecting the courts’ increased expectations of them as much as judicial concern that a negligent expert might escape scot free.

Where an expert does not obey their duties, their evidence may be rejected or their opposite number’s evidence preferred, resulting in a defeat for the party instructing them. Without immunity, the party could then sue the expert for negligence.

Where experts, for example, misrepresent their expertise, it’s difficult to see why they should be protected. In fact, one can see how the possibility of a negligence action might persuade experts, and those instructing them, to respect their duties to the court.

One shouldn’t overstate the problem. In 2005 the RICS received 45 complaints against members that acted as expert witnesses. This year it has received 37. Many of the complaints arise from party wall and boundary disputes. Not all those complaining will have been caused a loss, even if the complaints are well founded. However the limited scale of the problem only supports the removal of immunity.

The days of expert immunity are numbered. There’s a good chance it will soon go – just don’t ask me to calculate the odds.