Expert Witness immunity- Where Now?
SM: How are you finding Expert Witnesses (EW’s) are reacting to the loss of their immunity?
JW: I think most are recognising that it hasn’t actually changed their duties to either the court or to the client. Most EW’s have always accepted that they have a duty (even if not legally enforceable) to their client to perform their role competently and professionally, but many are nervous about what will happen now if their client doesn’t win the case. Will they be seen as a scapegoat and face a claim from a disgruntled client?
SM: This was exactly the fear barristers had when their immunity was removed by Arthur JS Hall & Co v Simons, but the great increase in litigation that was talked about hasn’t materialised. Do you really think it will be any different for EW’s?
JW: It shouldn’t be but experience suggests, particularly in the surveying world, that when anything goes wrong, the surveyor is seen as the first target for any action, regardless of whether they were actually at fault. It also has to be remembered that even if the EW is fully vindicated any such claim will still have involved a costly and time consuming process.
SM: I’m not sure that claims based on an opinion that isn’t upheld will be so readily launched. The overriding duty under Part 35.3 CPR still prevails and it will be extremely difficult to show that a reasonably formed expert opinion represents grounds for a disgruntled client to file a claim against their EW. It needs to be remembered that Jones v Kaney didn’t involve any allegation that the opinion was negligent. It revolved around the EW signing a Joint Statement which did not represent her full and true opinion.
JW: That’s true and I certainly hope that this is reflected in how the law in this area develops. Otherwise there could be a growing reluctance in experts in a field to act as EWs.
SM: Do you really think so? After all, at the Bond Solon Annual Expert Witness Conference in November last year wasn’t this issue specifically raised in one of the general sessions?
JW: Yes it was and there was a great deal of disquiet expressed about the potential for conflict that could arise between an EW’s duty to the court and pressure from a client.
SM: And yet didn’t the majority, when asked, confirm that they would continue to act as EWs even if immunity was removed?
JW: Yes. Out of 106 who responded only 14 said that they would not continue to act.
SM: That’s still a significant number. Do you see this being representative of property professionals too?
JW: That will be interesting to see. There are a lot of experts in their field in the profession but this is not the same as being an EW. Unless the individual fully appreciates the impact of this difference I can see their employers or Indemnity Insurers making it difficult for them to continue unless they undertake specific training. I also think that solicitors will have an important role in how this develops. After all, what do you look for when appointing an EW?
SM: Well, obviously, someone with expertise but, you’re right, that’s not all. Being an EW goes well beyond having an expertise in a particular field. We will always look for someone who is well regarded, is able to meet deadlines and who has credibility in the witness box. The EW will also need to show that he has a thorough understanding of CPR Part 35, Practice Direction 35 and of the Pre-Action Protocols relevant to the field. After all, knowledge of Part 35 now forms a specific part of the required Statement of Truth and a potential area of cross examination.
JW: Something I’m all too well aware of! How do you go about assessing this aspect?
SM: The best demonstration of this understanding is to hold one of the qualifications in the area, such as the Bond Solon Accreditation that I know you have. I think that this will become increasingly important to those managing Dispute Resolution and may become an essential pre-appointment requirement. After all, not only does the EW have to be competent but we need to show that we acted competently in selecting them for the role.
JW: So to a degree, the reduction in the number of Experts available could come about through careful selection by solicitors rather than a reluctance to act?
SM: Very possibly and I think that particularly in property, where many Chartered Surveyors consider that qualification to be enough, there may be a rude awakening amongst those who are not qualified separately as EW’s. It’s also worth repeating that Jones v Kaney was not concerned with the actual opinion expressed, it was concerned with a failure in the operational aspects of being an EW. If we select an EW who is not sufficiently aware of the implications of this we may be exposing ourselves to a claim from the client for appointing someone inappropriately qualified for the role.
JW: An interesting point and one that I’ve not seen raised before in the articles and discussions. It’s also interesting to draw a parallel with the feedback we’ve had from our Professional Indemnity insurance underwriters. They are taking a risk based approach to their response to this issue. They have viewed my qualification as a major risk limiting factor and have not altered our premiums. I suspect that they will take a different view of those not qualified as EWs come their renewal.
SM: Again, this is likely to have an impact on the pool of available EW’s and I think this should be cause for concern in some fields.
JW: Why? Surely there’ll always be someone whose expertise you can call on?
SM: It’s not so much that, it’s more a possible tendency for EWs to become distanced from actual practice in the relevant field. Lord Justice Moses has raised concern over this in the past and I think that, due to all of the factors we’ve discussed, the loss of immunity is more, not less, likely to push experts into becoming Professional EWs, half a step removed from their field. This is not a good thing and runs the risk of affecting the quality of evidence available to the courts.
JW: I see your point. So how do you see this developing for solicitors?
SM: I think the spotlight will be much more focussed on an EW’s conduct and evidence and that solicitors are going to have to be more careful about their selection. There is also a tendency, in property disputes particularly, for a surveyor who has been involved in negotiations to inherit the role of EW without any consideration of his suitability or impartiality. This could seriously undermine the EW in court and we will have to be extremely careful to consider alternative appointments with clients in these situations. How about you?
JW: I think there are three areas that experts are going to have to pay careful attention to if they’re to continue as EWs:
- Procedure – an in depth understanding of Part 35, PD 35 and relevant Pre- Action Protocols.
- Qualification – an ongoing up to date qualification to demonstrate their EW credentials.
- Instructions – these will need to establish clearly and precisely what is expected of the EW and how far their duty is to extend.
SM: I suspect there may be more to this latter point than initially meets the eye?
JW: There certainly is. As an example, I’m regularly called upon to give Diminution Valuation evidence in dilapidation claims, sometimes as a Single Joint Expert. I need to be extremely careful to set out exactly what level of investigation is needed into the landlord’s intentions and into the costing of works and to place the appropriate duty on the client/clients to provide full and truthful information if requested. Even if it may be prejudicial to their position. By setting out the extent of my duty of care in this regard I minimise the risk of any claim that I’ve fallen short.
SM: I suspect that this is quite straightforward when you’re in a professional environment where you have routine Terms of Engagement but what about those fields where EWs may not be so familiar with such documents.
JW: That’s where Professional Indemnity Insurers can help. Nearly all policies and underwriters carry a Risk Management department that can assist with such matters, usually without charge as for them it is reducing the likelihood of a claim.
SM: It sounds as though you, unusually, see the loss of immunity as a positive thing?
JW: I think I see it as an opportunity for EWs in all fields to actively promote the professional status that should be afforded to this important role. As you say, expertise is just the start and it is about time that all parties, clients, lawyers and EWs themselves, recognised this.