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Loss of immunity from suit for experts

The author previously wrote a brief stop press article on this matter arising out of the Jones v Kaney case. Now that the dust has settled a little, one may expand upon the probable impact of this important decision of the Supreme Court.

The brief facts

1. The claimant, Mr Jones, had brought a claim for post-traumatic stress disorder (PTSD) based on a psychologist’s opinion report. The defendant in the original claim opined that Mr Jones was exaggerating his physical symptoms. A telephone discussion between experts took place, followed by a draft Joint Statement prepared by the defence expert. Miss Kaney (who was the claimant‘s psychologist) signed it without even reading it, when it was a retraction of Miss Kaney’s previous opinion.

2. Mr Jones received a much lower settlement figure in the PTSD case than he had expected. Giles Eyre of 9 Gough Square, London, has stated ‘the facts in this case are unfortunately not entirely unique’.

3. Kaney was naturally challenged by Mr Jones’s solicitor, and Miss Kaney admitted that she had not seen the defendant’s Report and that the joint statement (JS) did not reflect the discussions but she signed it because she felt under pressure to do so.

Comments

4. Thus, as a result of the unwise actions of this expert, all experts have lost their immunity from suit.

This is Giles Eyre in full:

5. ‘There is now, concurrent with the duty to the Court under the CPR, an enforceable duty of care owed by experts to the party instructing them, as there is in any contract to provide services. That duty of care is subject to the obligations imposed on the experts by the CPR.

‘There would not appear to be any limit to the area of the work involved in providing expert evidence for a party’s use in litigation which is now excluded from this duty and the potential for a claim in damages for its breach.

‘Negligence by an expert in writing and providing reports, responses to questions for clarification and joint statements, and in advising in conference and giving evidence in court can all result in a claim in damages for any loss caused.

‘The expert who causes loss to his client by adopting or adhering to an opinion outside the permissible range of reasonable expert opinions will be liable for that loss.

‘The expert who expresses an opinion without due consideration of the available evidence such as the medical records or existing medical reports, or who without good cause abandons an opinion in the face of an opposing expert’s opinion, will also be at risk of a claim.’

6. Many commentators have said that removal of immunity would tend to ensure a greater degree of care in preparing a report. But the change may also result in a wider range of opinion, an unnecessarily weaker opinion, caveats or even heavily qualified opinions. In an ideal world, none of these should happen.

7. Lord Brown suggested in his judgment that ‘The most likely broad consequence of denying expert witnesses the immunity accorded to them (hitherto) will be 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.

‘I for one would welcome this as a healthy development in the approach of expert witnesses to their ultimate task (their sole rationale) of assisting the Court to a fair outcome of the dispute (or, indeed, assisting the parties to a reasonable pre-trial settlement)’.

8. The expert’s ultimate task and sole rationale is indeed to assist the Court, but do not experts now also owe a serious duty to our client? Surely this is a major contradiction in the role of the expert, and is in no way comparable to a barrister whose duty is solely to his client, and whose role was discussed at length in the judgment.

9. As forensic accountants/experts we have never operated in a risk-free environment, but the risks now are much greater.

10. Even before Jones v Kaney, there were certain measures that could be used to deal with poor experts, for example;

(a) The Court could award wasted costs against the expert when the expert had acted recklessly or in flagrant disregard of their overriding duty of care to the Courts, per Phillips -v- Symes [2004] EWHC 2330

(b) Any advisory, pre-litigation work could fall foul of a negligence claim (as before).

(c) An expert may be subject to disciplinary action by their professional body, such as ICAEW.

11. The generally held view of whether there will be a tidal wave of satellite litigation against experts is that it will not occur. Even if the aggrieved client is particularly determined, it will be hard for him to mount a claim of negligence, not least because of funding difficulties and the need to find another expert to agree with his allegations.

That does not of course mean it will not occur, so the reader should make sure they are not that test case.

12. Points to consider in more detail:

(a) Be extra vigilant in providing any initial views on a case – avoid being too zealous or too cautious.

(b) If after exchange of expert reports you have concerns, discuss it with your solicitor before the expert discussion and Joint Statement (JS).

(c) Read the JS very carefully before signing it, noting any changes proposed by the other expert (if you prepared it) and be even more careful if he prepared it. Ideally this should be done at a meeting, but this rarely happens; more typically there is merely an email exchange, etc.

(d) Your terms and conditions (T&C) may need re-visiting to consider any limitation or capping of liability. However, this is not fool proof, and the Courts are littered with this type of failed defence.

(e) It is essential you have adequate PII cover. It may have to be retrospective for six years, to when Kaney was first negligent in this case.

With this in mind, if you are a member of The Academy of Experts or UK Register of Expert Witnesses, you may wish to contact them about their schemes, which enjoy beneficial rates by buying in bulk, rather than you as an individual.

(f) This case may well lead to the development of a professional class of expert, rather than the professional undertaking the occasional expert assignment (though their Lordships did recognise that accountancy is one of the professions where one encounters full-time experts more often).

(g) Given the anticipated significant rise in PII premiums and the need for more work on file notes etc for self-protection, the costs of engaging experts may well increase.

13. The issue of the Single Joint Expert (SJE) is particularly difficult. Some commentators hold the view that the SJE appointment is relatively rare, but that is changing. Many expert accountants now receive frequent SJE instructions to value family businesses, and in some areas it is now rare for a District Judge to allow party experts in such cases.

14. On the topic of the quality of an expert’s report, Dr Stephen Castell CITP writes in the EWI magazine: ‘In my experience, an expert witness involved in any significant matter would not produce an expert report to be served into court that had not also been first closely inspected and crawled over, with extreme intensity, meticulous care and attention, and at some length, by not only his client (Note: I think it should be the claimant/defendant NOT client), but also his instructing solicitor and, most importantly, the leading and junior Counsel involved.

‘Clearly if there were to be any ‘egregious failure’ or ‘glaring lapse of judgement’ alleged against the expert then all parties concerned in quality-assuring his expert report before serving it would inarguably be equally as culpable as he in allowing that to happen” – which is fine if contributory negligence were to apply.

15. On a lighter note, Dr Castell has suggested the following wording for the Expert’s Declaration:

'I confirm that the documentary reviews, technical investigations, findings, analyses, inferences, conclusions and opinions described and given in this report, which are entirely and independently mine, have been checked, verified and approved as to integrity, probity, veracity, honesty, completeness, correctness, and meeting all appropriate professional standards, including those of conducting my activities as an independent expert with due reasonable skill, care and diligence, and as regards my overriding duty to assist the court, by not only me but also by [name of party on whose behalf the report has been commission], my instructing solicitors, [name of firm], and [name of leading counsel] QC and [name of junior counsel] of Counsel.

I further confirm that, as far as I am aware and have after reasonable enquiry been able to determine, this report does not contain any fact, opinion or other material that could be held to constitute any egregious failure or glaring lapse of judgement on my part in the way I have undertaken my work, any representations made by me, any acts or omissions on my part, or anything else in regard to the scope of the matters and issues on which I have been instructed.

16. Regrettably, it is not expected that such wording will become the norm! But one must stress the crucial point that the EW has a fundamental independent obligation to find the facts and to interpret honestly these to assist Court and not to become an advocate for ’his’ side of the case.

17. James Badenoch QC emphasises the point of Experts’ fears of suit when he recently responded (in respect of the question of being sued):

‘My answer to these naturally concerned experts is to restate in broad terms the standards which if followed will provide a complete defence to any attempt to sue you. If the opinion you reach is thoroughly and conscientiously researched, honestly held, and impartially presented, then whether or not that opinion prevails or is rejected by the court you will have nothing to fear.

‘Remember too that, however anxious-making an unmeritorious claim may be, such claims will seldom if ever get under way, not least because lawyers would demand very strong supporting evidence before initiating any such, and judges would be swift to strike them out if they did start.

‘The remarkable facts of Jones v Kaney (if confirmed at trial) are an example of how extreme the expert’s failure would have to be.’

Steve Redhead FCA MEWI TAE, Managing Partner R&M Chartered Accountants

Forensic Group, August 2011