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PAGE 12


EXPERT WITNESSES 


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could see a change to experts’ immunity from suit – for both their performances giving oral evidence in court, and also for the contents of the reports they prepare.


Martin Baldock, vice president and general manager at digital forensics experts Stroz Friedberg, believes the case has huge importance for the expert witness field. ‘There could be significant consequences if opinions harden around suggestions that expert witnesses should lose their immunity and this actual comes into effect,’ he explains. Most at threat, Baldock notes, will be sole practitioners who ‘have no colleague to use as a sounding board to test the opinion they offer’. As a result, expert witnesses may need to consider investing in additional professional liability cover as a hedge against possible prosecution. ‘They may therefore decide it is simply not worth it if the cost of ­remaining on an expert witness register outweighs potential ­benefits,’ he adds.


The fear is that, because expert witnesses do not rely solely on court work, at a time when they are more in demand than ever, they will opt to focus their professional skills on other work, rather than take on new liabilities. Rawlin, though, does not predict a mass exodus, even if expert witnesses won’t welcome the loss of immunity should it come. ‘I would hope that experts already act to the best of their ability and give independent advice to their client that they feel entirely comfortable with,’ she says. Though, she adds, there may be some important issues to resolve here: ‘It is really important that their duties to the court and the giving of evidence under oath is not seen to clash in any way with the loss of immunity, should this happen.’


Sole expert


A bigger issue for Rawlin and others is the added pressure of appearing as a single joint expert. Aside from the practical implications – it can take longer to get appointed as the expert needs to hear from both sides before proceedings – many experts value the fact that their own opinions are being scrutinised by another expert. ‘It is a lonely place in some respects,’ she says, as the single expert doesn’t have the ‘intellectual “testing” of their opinion’ by an opposing expert.


But on the question of a single witness’s neutrality, Rawlin believes ‘that is not difficult at all’. She points to the practice of preparing alternative calculations assuming the facts that are put to the expert by each party. But are court time and the parties’ costs saved by the use of a joint single expert? Rawlin casts doubt on this: ‘I have experienced many more “questions for experts” when acting as a SJE, compared with acting as a party-appointed ­expert.’


Forbes is also sceptical: ‘The single joint expert witness system too often, and too easily, becomes a contradiction to its aims of reducing time and costs.’ He believes that the use of a single joint witness has the potential to add another ‘battleground’ for disputing parties, as both sides have to agree what the expert will be asked to do and how. ‘This can lead to lengthy debate,’ he explains, ‘which means that the expert, rather than being left to focus on delivering excellent quality evidence, has to manage instructions from two parties whose aims are fundamentally different. This is manageable for those of us who have sufficient experience in giving expert evidence but has the potential to “dilute” the evidence of those who are less experienced.’


There may also be an added pressure in these contexts on sole practitioners, as expert witnesses from larger practices have the opportunity to gain extra comfort by testing their views against colleagues. As Baldock notes: ‘In large firms such as ours, where all expert opinion is subject to multiple peer review before being offered in court, risks are much reduced.’


Whether it be public bodies, companies or law firms, those who rely on expert witnesses should be keeping a weather eye on how those experts are dealing with the increased pressures they face. After all, this is not a primary source of ­income for them – and at a point when demand for their services is at its highest, expert witnesses could simply return to their day jobs.


Eduardo Reyes is features editor at the Law Society Gazette


 Expert demand in number


54% of experts saw an increase in instructions in 2010*.


9% of experts reported a decrease in instructions over 2010*.


37% – the rise in IP cases heard in the High Court in 2009.


10%, or £11m – the reduction in experts’ fees proposed in the Ministry of Justice’s 2010 Legal Aid green paper


Source: the Bond Solon Expert Witness Survey


 


Expert immunity under scrutiny Jones v Kaney


Paul Wynne Jones v Sue Kaney [2010] EWHC 61 (QB) concerned an application by an expert psychologist for summary judgment to strike out a claim for negligence made against her by the claimant. She wanted to rely on the ‘witness immunity rule’ that provides protection from suit for experts who write reports, give oral evidence, or do other preliminary work for court purposes.


Paul Wynne Jones, the claimant, brought a claim for personal injuries following a road traffic accident. Dr Sue Kaney was instructed to prepare an expert psychology report on his behalf in that case. In her initial report, Kaney suggested a diagnosis of post-traumatic stress disorder (PTSD). The defendant’s expert, by contrast, thought that Jones was exaggerating his physical symptoms. The experts discussed the case and prepared a joint statement.


The statement was signed by both experts and was damaging to Jones’s case, resulting in the claim settling for a considerably smaller sum than originally claimed. It transpired that Dr Kaney had signed the joint statement prepared by the defendant’s expert without any comment or amendment. The claimant then made a claim for negligence against her.


Dr Kaney’s application for summary judgment to strike out the claim relied on the Court of Appeal decision in Stanton v Callaghan [2000] QB 75 CA, a case that involved an expert structural engineer.


Arguments made against Stanton v Callaghan being relied on were first, that in Arthur Hall v Simons [2002] 1 AC 615 a barrister was found not to have immunity from suit. And second, the immunity rules were inconsistent with the right to a fair trial, as guaranteed by the Human Rights Act 1998.


While finding in Dr Kaney’s favour, the judge said: ‘Although I conclude that [Stanton v Callaghan] remains good law, I have doubts as to whether it will continue to remain so for the reasons canvassed by the claimant and the discussion summarised above. I conclude that there is a substantial likelihood that on re-examination by a superior court, with the power to do so, it will emerge that the public policy justification for the rule cannot support it.’


The judge therefore granted Mr Jones a certificate under section 12 of the Administration of Justice Act 1969. This so-called ‘leapfrog’ meant he could apply to the Supreme Court for permission to ­appeal, without the need for the appeal to be heard first by the Court of Appeal.


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Legal Services Directory 2011

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