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."
