John Forsyth - Scotsman - 8th February 2010
The vile calumny version of the expert witness is that they are hired guns, delivering the best evidence that money can buy. Which lawyer charged with safeguarding the interests of his or her client would want to call in aid second or third best evidence?
The more mundane version is that both the civil and criminal courts the length and breadth of the land daily rely heavily on the light that expert witnesses can shed on the matters at issue. At their best they can help steer the judge and/or jury through the undergrowth of claim and counter-claim, relevant and irrelevant. They should always be "independent" and free to deliver evidence without fear or favour in the interests of justice.
In recognition of their status, expert witnesses have enjoyed a blanket immunity from being pursued in the courts if their evidence turns out to be flawed or even negligent.
However, that immunity was questioned last month by a judge in an English case. Mr Justice Blake was so concerned at the effect of expert witness immunity in the case before him that he authorised the issue to be referred to the UK Supreme Court for reconsideration.
Though it is an English case, a ruling by the Supreme Court will inevitably affect the status of expert witnesses in Scotland. And though the issue does not appear to arise frequently in Scotland some of the issues in the English case, specifically "joint" submissions by experts on either side of a dispute, may become more frequent as a consequence of case management recommendations in the Gill review of Scottish Civil law.
The English case concerned a Mr Jones who was involved in a road traffic accident in March 2001 and raised a personal injury action seeking compensation, among other heads, for psychological injury. His solicitors instructed Ms Kaney, a consultant clinical psychologist, to assess his injuries. Her initial report suggested a diagnosis of post-traumatic stress disorder.
The insurance company for the defendant in the road traffic claim suggested that Mr Jones was exaggerating his symptoms.
In October 2004, the district judge ordered that the respective experts hold discussions and prepare a joint statement that was drafted in a telephone conversation between them and subsequently signed without comment. In the joint statement Ms Kaney now indicated that Mr Jones's psychological reaction after the accident did not constitute a recognised psychiatric disorder and, further, criticised his credibility on the basis that he had withheld relevant information.
Mr Jones's solicitors investigated the apparent change of mind by Ms Kaney who told them she had not seen the reports of the opposing expert at the time of the telephone conference; the Joint Statement, as drafted by the opposing expert, did not reflect what she had agreed in the telephone conversation, but she had felt under some pressure in agreeing it; her true view was that the claimant had been evasive rather than deceptive; it was her view that the claimant did suffer PTSD that was now resolved.
As a result of the damaging nature of the Joint Statement, and the inability of the claimant's then solicitors to persuade the judge she should no longer act as an expert in the proceedings, the matter was settled for a sum considerably less than would have been the case if the defendant had not signed the Joint Statement in the terms that Ms Kaney did.
Mr Jones raised an action against Ms Kaney for the loss he alleged had arisen because of her negligence in agreeing a report that did not represent her true opinion. Her defence was that as an expert witness she was protected by expert witness immunity. No evidence was led on the facts of the case.
Mr Justice Blake ruled that he accepted he was bound by a Court of Appeal decision in a 1998 case Stanton v Callaghan that reaffirmed expert witness immunity but was clearly unhappy that it represented the best balance of the law in the light of changing perceptions of public policy. He granted a Section 12 Certificate allowing the claimant to apply to appeal the decision to the Supreme Court.
"...
if the Claimant's allegations are right, he has suffered a
particularly striking injustice on which the first call on public
policy is that there should be a remedy, subject to some weighty and
compelling particular reason why he should be deprived of it in the
greater public interest."
Is the writing therefore on the wall for the established immunity of expert witnesses from being sued by their own side for negligence or incompetence?
It remains unlikely there will be any change in England or Scotland of the bar on suing the expert witness of the other side though it is clear that can be a source of much grievance. In England it has recently become possible to claim for costs incurred by the other side's expert witness if their performance significantly delayed proceedings.
Neither is there likely to be a change to the immunity of experts in criminal cases. Advocate, Simon Di Rollo, recalls the issues were rehearsed clearly in the case of Karling v Purdue in 2004: "This was a case in which a man who had been convicted of murder but then had his conviction quashed after serving several years in gaol tried to sue the pathologist, Basil Purdue, who had been asked to carry out an autopsy on behalf of the defence," he says.
"Purdue had concurred with the view of the cause of death of the Crown and clearly that had a serious effect on the defence case. But the conviction was overturned when evidence of another cause of death was established. I think the arguments were expertly laid out by temporary judge Reid and that remains the leading Scottish case on the issue."
However, Di Rollo agrees that blanket immunities run counter to the trend of European Law over the last decade. Immunity for advocates remains in Scotland, though it was removed for barristers in England following a judgment called Hall v Simons in 2002.
"European law does not like blanket immunities and has preferred defining lines of duty of care," he says.
"An expert never has a duty of care to the other side, nor in criminal cases. Apart from anything else, if the expert witness is looking over his shoulder at all it will be to his professional body. In the notorious Roy Meadows case proceedings were subsequently taken against him by his professional body, the General Medical Council. He tried to argue his witness immunity extended to the GMC but that wasn't accepted."
Patricia Robertson QC, an English barrister, says the prophesies of an avalanche of suits against barristers proved unfounded: "I'd say it has been more of a trickle than a flood," she says. "I can't imagine it will be different if the immunity were to be removed."
Are there no merits in the arguments for retaining the present immunity based on the assertion that experts should be free to give their evidence without fear or favour and without looking over their shoulder at a possible action from an unhappy client?
"The standing of expert witnesses is fundamentally important to the service they perform to the courts and the interests of justice. But court concludes otherwise. They may consider that it is desirable to make specific exceptions such as in child protection proceedings which are often vexed and harrowing and the argument that loss of immunity might discourage experts from giving evidence at all might prevail."
See also:
Inquiry after judge jails sex abuse case witness
Dunblane massacre witness statement
Shirley McKie
Further light on the Scottish Finger-printing scandal
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