Is Expert Witness Immunity in England and Wales Bulletproof?

In this article Andrew Merrilees – Expert Witness, Chartered Quantity Surveyor and Director at CCi, reviews expert witness immunity in England and Wales, questioning is it bulletproof?

Andrew, reviews the precedents for the threshold for cases of professional negligence against an expert witness and the difficulties of suing an expert for professional negligence, highlighting the responsibilities of an expert witness and their overriding duty of independent and unbiased assistance to the court.

CCi has significant experience and is often called upon to supply experienced Expert Witnesses – independent and impartial experts who are trained in providing oral testimony in Court and for tribunals. With a global network of delay, quantum, and technical experts, and a high level of expertise and direct industry experience, these experts deliver forensic analysis and opinions and provide them in clear and concise expert reports.

“[58.] It had been, observed Lord Dyson, “rightly acknowledged” by Lord Chadwick in Stanton v Callaghan [2000] QB 75 at 88E that an expert was a professional man who undertook for reward to provide advice within his expertise. In Jones Lord Dyson found there to be no conflict between the duty owed by an expert to his client and his overriding duty to the court in CPR 35(3). He said at [99]: “His duty to the client is to perform his function as an expert with the reasonable skill and care of an expert drawn from the relevant discipline. This includes a duty to perform the overriding duty of assisting the court. Thus, the discharge of his duty to the court cannot be a breach of duty to the client.”

“[59.] The question for me therefore is not whether the defendant owed the claimant a duty of care but whether the harm or loss claimed falls within the scope of that duty. Causation does not answer that question: it does not follow that every element of loss which would have been avoided but for the breach of duty would have is actionable. See Lord Oliver in Caparo Industries plc v Dickman [1990] 2 AC 605 at 651: “the duty of care is inseparable from the damage which the plaintiff claims to have suffered from its breach: it is not a duty to take care in the abstract but a duty to avoid causing to the particular plaintiff damage of the particular kind which he has in fact sustained”. In determining whether the loss is of a kind for which the defendant must take care to protect the claimant, the court should consider the purposes for which the information was given and the circumstances in which it was given, see Lord Roskill in Caparo at 629B. It is necessary to see what risk the duty is supposed to guard against and whether the loss represents the eventuation of that risk. This must be judged objectively.”

“[61iii] The critical duties and responsibilities of an expert, consistent with the overriding objective, include objectivity and independence: expert evidence should be and should be seen to be the independent product of the expert uninfluenced by the exigencies of litigation; an expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within their expertise (see “The Ikarian Reefer” [1993] 2 Lloyds Rep 68).  To extend the scope of the expert’s duty to the protection of a party from the risk of an adverse credibility finding would create a real conflict between the expert’s overriding duty to the court and his or her duty to the party. Lord Dyson in Jones aligned the duties on the basis that by complying with the overriding objective of independence and objectivity, the expert was fulfilling his duty to the client. But such an alignment would be unsustainable if the scope of the duty to the client was extended in the way proposed by the claimant in this case. All the more so, when, as here the expert is instructed jointly by both parties.”