The English Supreme Court has ruled that expert witnesses will no longer enjoy immunity from civil lawsuits when giving evidence in either civil or criminal legal proceedings.
International law firm Withers
Worldwide, who have highlighted the March 30 ruling in their latest
briefing on art and cultural assets, explained that expert
witnesses can now be sued for negligence for the views they express
at any stage of the litigation process.
"The distinction that did exist
between work done at the early stages of a claim, which was
actionable, and work done in the later stages relating to the
evidence given at trial, which was not, no longer exists," said
professional negligence specialist Jasmine Gill, of Withers
Worldwide.
The ruling was made after an appeal to
the Supreme Court in a case concerning a motorcyclist who sustained
serious injuries after being knocked down by a drunk, uninsured and
disqualified driver.
The motorcyclist launched the lawsuit
after having to settle his claim for significantly less than he had
anticipated because of a discrepancy in evidence given by an expert
witness.
The expert witness - a consultant
clinical psychologist - had confirmed that the motorcyclist had
suffered from Post Traumatic Stress Disorder (PTSD), yet later
signed a statement drawn up by the defendant's expert witness
saying that he had not.
She went on to admit that the
statement did not reflect her views but said she had signed it
because she felt under some pressure to do so.
The motorcyclist had applied for
permission to change his expert witness but the district judge
refused.
The joint statement damaged the
motorcyclist's case and this led to his claim of negligence against
the consultant clinical psychologist. She applied to strike out the
claim on the basis of expert witness immunity, arguing that
immunity extended to the preparation of the joint statement which
was sufficiently close to the court process to fall within the
scope of protection.
The leading case in law supported this
view and the application was granted.
"However, as the case raised issues of
public policy, the judge granted a certificate for a leapfrog
appeal to the Supreme Court," said Jasmine Gill.
General
Rule
Central to the Supreme Court's
consideration was the general rule that every wrong should have a
remedy and that any exception to this rule (such as immunity for
expert witnesses) "must be justified as being necessary in the
public interest and kept under review".
Would the removal of immunity dissuade
experts from offering their services? The court referred to Hall v
Simons [2001], a case which had removed immunity from barristers,
and noted that it had neither affected the Bar's willingness to
perform its duty nor led to an increase in vexatious claims against
barristers.
The Supreme Court also argued that the
quality of evidence might be improved by the removal of immunity,
explained Ms Gill, as the experts would have a "sharpened awareness
of the risks of pitching their initial views of the merits of their
client's case too high or too inflexibly, lest these views come to
expose and embarrass them at a later date".
"The fact that expert witnesses are no
longer immune from civil claims clearly gives rise to a concern
that there will be an increase in claims against expert witnesses,"
said Ms Gill. "On the positive side, experts will now need to take
greater care in the opinions they give and think carefully about
the reasons for adapting or altering them while under pressure from
their own client or the other side."
She said that it was also important to
remember that:
• the immunity lost was limited as
expert witnesses could already be sued for work done primarily for
the purposes of 'advising' the client;
• expert witnesses could already be
held liable for personal costs orders where litigation arose
wrongly or was wasted as a result of them giving inappropriate
evidence;
• expert witnesses can face
disciplinary sanction where fitness to practice is in
issue;
• they still have immunity from suit
for defamation as a result of anything said in court;
• experts cannot be sued by a former
opposing party to whom they owe no duty.
"Given that the threshold for
establishing a breach of duty is relatively high and experts were
already at risk of disciplinary proceedings, costs sanctions and
criminal sanctions (experts enjoyed immunity from civil suit only
and were never protected against a criminal claim for perjury,
perverting the course of justice or contempt of court), arguably
the impact of the decision will be less than might at first
appear," said Ms Gill.
"As a result of the decision of the
English Supreme Court, an expert may find himself faced with a
civil claim where his evidence given in the English courts is not
founded on reasonable grounds. But if he is doing his job well, he
should have nothing to fear."
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