No damage done

The Supreme Court 'abolished' the immunity of experts in Jones v Kaney [2011] UKSC 13. Sounds drastic, but was it?

The 'sparse authority' upheld immunity generally. Two recent cases (Palmer and Stanton) distinguished advice given by experts from later (less optimistic) evidence. The SC held that experts have contract and tort duties, and overriding duties to the court, in CPR 35.

The Jones facts were extraordinary: the claimant's expert having stated that the claimant suffered from PTSD and depression; participated in a court-ordered discussion between experts without having read the report of the defendant's expert; and then signed a joint statement (drafted by the defendant's expert) which stated that the claimant was exaggerating and was deceptive and deceitful. She later asserted that the joint statement did not reflect what was agreed.

Jones was not a case about the contrast between earlier advice and later evidence. This was a case of the expert not applying her mind to the purported evidence at all. What she did in participating in a discussion without having read her opponent's report and in signing a statement with which she did not agree was no more in accordance with her retainer than if an expert on a building valuation had submitted a report valuing the wrong building.

The claimant settled his claim on unfavourable terms, and then sued his expert. The expert applied to strike out on the basis of an expert's total immunity from any civil action.

The SC majority found no justification for the immunity. The minority upheld the immunity as justified and stated that only parliament could abolish it.

Everyone agreed that any attack on an expert who had behaved within the parameters of CPR 35 would be bound to fail. What separated the two camps was whether an expert could be sued for breach of contract or negligence outside the CPR 35 duties.

It is not clear there ever was any total immunity for experts. They are exposed to disciplinary proceedings and wasted costs orders. The Palmer and Stanton cases held the expert liable not in contract or tort for the evidence given but in negligence for the advice. There seems to have been no case before Jones upholding immunity in connection with a claim in contract or negligence, which is not surprising: it might before Jones have been fanciful to suggest that the Jones facts could ever occur.

Nothing to report

Where, in practical terms, does this judgment lead? Are potential experts likely to be deterred from accepting a retainer? No '“ no more than barristers have been deterred by the removal of their immunity in Hall v Simons [2002] 1 AC 615. Is experts' insurance likely to be affected? Probably not '“ experts generally do not accept retainers based on whether or not they are insured, and, if they are concerned about liability, they will not be lulled by the mere existence of a policy into a feeling that being sued will not matter. Are they likely to adhere wrongly to optimistic opinions favouring their clients for fear of being attacked by their client for giving evidence less favourable? Unlikely. What is more likely is that experts will be more measured in their initial assessments for fear of a later divergence between early advice or reports and later evidence. This in itself would be no bad thing: the more realistic opposing experts are from the outset, the more likely their evidence is to be agreed and settlements promoted. Will experts ask about their immunity? No more so than they ever did before.

In practice then, if experts give negligent advice or do something obviously outside their retainer such as signing a joint statement without reading it or reporting on the wrong building they can expect to be sued by their dissatisfied client. If they perform according to their contract (which incorporates compliance with CPR 35, by the way) and the only adjustments in their opinions which they give are within the parameters of CPR 35, they will not successfully be sued. To that extent the protection of expert witnesses remains unchanged although it may have lost the label of immunity. Experts' liability for negligent advice or for negligence outside of the scope of CPR 35 was probably always there. It just needed a case with truly extreme facts to reveal it.