At the end of October 2006 the Court of Appeal allowed the GMC’s appeal against the by now notorious decision of Collins J in GMC v Meadow, [2007] 1 All ER 1 (CA); [2006] 2 All ER 329 (Admin). The CA held that an expert witness has no immunity from disciplinary proceedings brought by his professional body arising out of his conduct as an expert witness. This is because: (a) the professional bodies are best placed to regulate matters of professional conduct; (b) to permit reference to a professional body only by the trial judge is a recipe for confusion and capricious decision-making.

Many judges simply will not have any idea whether a professional rule has, or may have been, broken; (c) it is unsatisfactory to leave the matter solely to the discretion of the judge; and, (d) in order for any immunity from disciplinary proceedings to be effective, a witness must know that he will have immunity before he speaks. He should not have to run the risk that, after his evidence, the trial judge may decide to refer him to his professional body after all (as Collins J. had ruled a trial judge could do as the sole exception to blanket immunity). This decision restores the law to the generally accepted position before the decision of Collins J. The CA’s reasoning is compelling. Given that most civil cases settle and so never get before a judge, a large number of litigants disgruntled by the conduct of their own, or the other side’s, expert would have had no avenue for redress had the decision of Collins J stood. Nonetheless, the saga of Professor Meadow touches upon a number of matters that were not in issue in the appeal but which are of more general interest.

Media pillory.
The GMC’s complaint against Professor Meadow stemmed from his evidence at the trial of Sally Clark for the murder of her two baby sons who died 13 months apart. Professor Meadow said that the chances of two cases of sudden infant death syndrome in the Clark family was one in 73 million. He added that this was the equivalent of a horse winning the Grand National each year for four consecutive years at odds of 80-1 each year. In the first (of her two) appeals, the Court of Appeal dismissed Sally Clark’s appeal in relation to this evidence on the basis that it was a “sideshow” which had been properly addressed by the judge in his summing up: Unreported, October 2, 2000 (Henry LJ, Bracewell & Richards JJ). Sally Clark convictions for murder were quashed on 29th January 2003 on the basis that the prosecution had failed to disclose a microbiologist’s report that raised the real possibility that one of the children had died from an infection: [2003] EWCA Crim 1020.

However, the CA added (obiter) that, subject to hearing full argument on the point, it would have been minded to have allowed the appeal on the ground that the 1 in 73,000,000 figure was “grossly misleading” and that its prejudicial effect may have outweighed its probative value: [2003] EWCA Crim 1020 at [175]. Ever since, Professor Meadow has been subjected to considerable media criticism. He is probably the most well know expert witness in the country. Yet, a High Court Judge and two Lord Justices of Appeal have acquitted him of serious professional misconduct. The pathologist who failed to disclose the microbiology reports (Dr. Williams) is barely known to the public.

Immunity from suit.
An expert witness, just like a lay witness, enjoys immunity from suit at the behest of his client once he has given evidence in court. In Stanton v Callaghan, [2000] QB 75, the allegedly negligent surveyor did not give evidence in court but caused the collapse of his client’s case when he changed his mind following a joint discussion with the other side’s expert. The Court of Appeal was not prepared to grant the expert immunity as of right but required that immunity to be justified in the public interest (which, on the facts, it was). Otton LJ (at 105B) accepted the principle that the policy reasons underpinning the immunity of experts might differ from field to field (e.g. expert accountants may find themselves liable to meet very large claims indeed if immunity was abolished). This idea was picked up by Thorpe LJ in Meadow. Thorpe LJ emphasised that the market for experts in the Family Justice System was different from the Civil and Criminal Systems: most of the experts were doctors; their fees went to their employers; and, their had to accommodate their court work outside their normal full time role. This market was “very sensitive to increasing or newly emerging disincentives”: (ibid) at [227]. Thorpe LJ thought that different considerations should apply to the immunity given to this market. Clarke MR and Auld LJJ were having none of this. Rightly, they emphasised that such a distinction would be “highly case-sensitive and difficult to draw on a case by case basis”: (ibid) at [116] & [67]. There are many strong arguments for abolishing an expert’s immunity from suit (including the point that many experts are not members of a professional body and so, even after Meadow, the client of a negligent expert has no effective redress). But, if this immunity is to be abolished (and the debate still rages about this), it should be abolished for all experts or not at all.

Mark James is a barrister at 1 Temple Gardens, Temple, London and is the author (with Tristram Hodgkinson) of ‘Expert Evidence: Law and Practice’ (2nd ed., 2007)(Sweet & Maxwell). Penny Harper is a Director at Bond Solon.