The defendant, a structural engineer, was retained by the plaintiffs in a claim against insurers for the costs of remedying subsidence of the plaintiffs’ house. He advised total underpinning for pounds 77,000, but later while preparing a joint report with the insurers’ expert witness, he was persuaded to agree that infilling with polystyrene, at a cost of only some pounds 21,000, would work. The case was settled on that basis, but the plaintiffs then brought an action claiming that their expert’s change of advice had been negligent.
Held: An expert giving a report for the purposes of proceedings had immunity from negligence since his first duty as an expert was to the court. An actual not a defensive view was needed from him. The protection of the immunity is available even if the trial does not take place.
Nourse LJ said that the extent of an expert witness’s immunity from suit was still in course of development and would and should be developed on a case by case basis: ‘. . . I see no justification for distinguishing between an expert and a lay witness, either on the ground that the expert is usually remunerated for his services or on the ground that he may be less likely than a lay witness to be deterred from giving evidence. Nor would I make any distinction between civil and criminal proceedings. An immunity founded on requirement of public policy that witnesses should not be inhibited from giving frank and fearless evidence cannot afford to make distinctions such as these. If they were allowed, it would never be certain that the public policy would not sometimes be put at risk.’
Otton LJ said: ‘immunity is not granted primarily for the benefit of the individuals who seek it. They themselves are beneficiaries of the overarching public interest, which can be expressed as the need to ensure that the administration of justice is not impeded. This is the consideration which should be paramount. And it is not only the conduct of the immediate hearing which we should consider to be the ‘administration of justice’. This is not a narrowly drawn phrase; it is best served by a purposive construction. ‘
Chadwick LJ summarised the authorities: ‘(i) an expert witness who gives evidence at a trial is immune from suit in respect of anything which he says in court, and that immunity will extend to the contents of the report which he adopts as, or incorporates in, his evidence; (ii) where an expert witness gives evidence at a trial the immunity which he would enjoy in respect of that evidence is not to be circumvented by a suit based on the report itself; and (iii) the immunity does not extend to protect an expert who has been retained to advise as to the merits of a party’s claim in litigation from a suit by the party by whom he has been retained in respect of that advice, notwithstanding that it was in contemplation at the time when the advice was given that the expert would be a witness at the trial if that litigation were to proceed. What, as it seems to me, has not been decided by any authority binding in this court is whether an expert is immune from suit by the party who has retained him in respect of the contents of a report which he prepares for the purpose of exchange prior to trial – say, to comply with directions given under RSC, Ord 38, r 37 – in circumstances where he does not, in the event, give evidence at the trial; either because the trial does not take place or because he is not called as a witness . . In my view, the public interest in facilitating full and frank discussion between experts before trial does require that each should be free to make proper concessions without fear that any departure from advice previously given to the party who has retained him will be seen as evidence of negligence. That, as it seems to me, is an area in which public policy justifies immunity. The immunity is needed in order to avoid the tension between a desire to assist the court and fear of the consequences of a departure from previous advice.’
Judges:
Otton LJ, Nourse LJ
Citations:
Gazette 15-Jul-1998, Gazette 03-Sep-1998, [1998] EWCA Civ 1176, [2000] QB 75, [1999] 2 WLR 745, [1998] EG 115, [1999] CPLR 31, 62 Con LR 1, (1999) 15 Const LJ 50, [1999] BLR 172, [1999] PNLR 116, [1998] 4 All ER 961, [1998] 3 EGLR 165, (1999) 1 TCLR 50
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Roy v Prior HL 1970
The court considered an alleged tort of maliciously procuring an arrest. The plaintiff had been arrested under a bench warrant issued as a result of evidence given by the defendant. He sued the defendant for damages for malicious arrest.
Held: . .
Approved – National Justice Compania Naviera S A v Prudential Assurance Company Ltd (‘The Ikarian Reefer’) 1993
Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:
1. Expert evidence presented to the Court should be, and should be seen to be, the . .
Cited by:
Cited – Darker v Chief Constable of The West Midlands Police HL 1-Aug-2000
The plaintiffs had been indicted on counts alleging conspiracy to import drugs and conspiracy to forge traveller’s cheques. During the criminal trial it emerged that there had been such inadequate disclosure by the police that the proceedings were . .
Cited – Meadow v General Medical Council Admn 17-Feb-2006
The appellant challenged being struck off the medical register. He had given expert evidence in a criminal case which was found misleading and to have contributed to a wrongful conviction for murder.
Held: The evidence though mistaken was . .
Cited – General Medical Council v Professor Sir Roy Meadow, Attorney General CA 26-Oct-2006
The GMC appealed against the dismissal of its proceedings for professional misconduct against the respondent doctor, whose expert evidence to a criminal court was the subject of complaint. The doctor said that the evidence given by him was . .
Cited – General Medical Council v Professor Sir Roy Meadow, Attorney General CA 26-Oct-2006
The GMC appealed against the dismissal of its proceedings for professional misconduct against the respondent doctor, whose expert evidence to a criminal court was the subject of complaint. The doctor said that the evidence given by him was . .
Cited – Westcott v Westcott QBD 30-Oct-2007
The claimant said that his daughter in law had defamed him. She answered that the publication was protected by absolute privilege. She had complained to the police that he had hit her and her infant son.
Held: ‘the process of taking a witness . .
Cited – Jones v Kaney SC 30-Mar-2011
An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Professional Negligence
Updated: 20 November 2022; Ref: scu.144655