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Picking over the pieces

How will the end of immunity from suit, ‘hot tubbing’ and a new pre-trial admissibility test in criminal trials affect the relationship between expert witnesses and instructing solicitors? Grania Langdon-Down reports

Caps on legal aid fees for experts, the ending of immunity from suit, a new style of giving expert evidence dubbed ‘hot tubbing’, tight costs budgets in civil cases and a possible new pre-trial admissibility test for expert evidence in criminal trials all pose challenges for experts and practitioners.

But will the changes in law and practice affect the relationship between expert witnesses and their instructing solicitors?

Experts, particularly those working in the family courts, are up in arms over the new maximum rates introduced by the Legal Services Commission in October and have been investigating possible legal challenges.

The new fees cover all civil, family and criminal work, with rates in some fields a third lower for those based in London than those outside the capital. The fees can be increased in exceptional circumstances if the case is either so complex or specialised but practitioners must get prior authorisation.

Practitioners say expert fees have previously absorbed a disproportionate amount of the legal aid fund. ‘However, what we can’t do,’ says Rodney Warren, director of the Criminal Law Solicitors Association, ‘is throw the baby out with the bathwater – it is not acceptable that justice is put at risk if appropriately highly qualified experts aren’t available’.

Christina Blacklaws, Law Society council member for child care lawyers, warns that if experts drop out because of the new rates, this could cause extra delays which could deny justice for the most ­vulnerable.

The Ministry of Justice says it will monitor the impact of the changes. It argues there was a full consultation, while the greater supply of experts in London allows for more competitive rates.

For Blacklaws, the shortage could be exacerbated by the Supreme Court’s 5-2 decision in Jones v Kaney to end experts’ immunity from suit, which she says could have a chilling effect on experts if distraught parents start looking for someone to blame – a concern raised by Lady Hale in her dissenting judgment.

The case has changed 400 years of law, says Stephen Murrell, senior solicitor specialising in property litigation with City law firm Macfarlanes. ‘When you first look at the case it appears very far reaching but I don’t think it will open the floodgates. It is analogous to the decision a decade ago which said barristers were no longer immune from being sued and that hasn’t led to many cases.’

The decision is retrospective so there is a risk that a disgruntled litigant will try to bring a claim, subject to limitation periods.

Murrell says he can envisage experts facing a claim blaming their instructing solicitor: ‘It may involve solicitors looking at the basis on which they are instructing an expert and looking carefully at their letter of engagement. On the other side, experts should be looking very carefully at what they are being asked to do. But I don’t see any necessity for solicitors to alter fundamentally the way they instruct experts.’

He expects experts will consider ways of limiting liability. ‘They will doubtless try and build something into their terms and conditions,’ he says. ‘Clearly you want someone for their expertise not for their level of cover. But if there was any suggestion that the expert wanted to limit his liability unfairly that would need to be looked at.’

Seamus Smyth, president of the London Solicitors Litigation Association, is head of litigation at London practice Carter Lemon Camerons. Speaking personally, he says: ‘In my experience, experts take on the work because they want to be paid and they want to promote their ­careers and I don’t think that will change.

‘I don’t think the Supreme Court justices covered themselves in glory with this judgment. The majority justices made the comment that all experts are insured, so what is the problem? But that is not true and, even if it was, that is not good enough. Solicitors are insured but that doesn’t mean if we are sued, we say no problem.’

He says immunity, which remains in place in relation to defamation, was never absolute as there were already four exceptions – perjury, contempt of court, wasted costs or proceedings before professional bodies. ‘This decision adds a fifth exception to enable clients to sue for damages. It is also only about privately retained expert witnesses.’

When retained by a client, an expert takes on two sets of obligations, he says – to the client who is paying him which involves contractual obligations and a duty of care, and to the court where there are clear rules on how expert witnesses must behave in relation to the content of their evidence.

‘It is plainly right that if the expert breaches his contractual obligations, the client must have the right to sue,’ Smyth notes. ‘But it is equally clear to me that, as far as content is concerned, the client should not have the right to sue. What the Supreme Court has done is abolish immunity generally without distinguishing between the two, although the majority justices agreed it is inconceivable that an expert, even if he changes his mind, could be successfully sued on the content of his report as long as he has complied with the court rules.’

Dr Bob Goudsmit, principal member with Dr J H Burgoyne & Partners, acts as an expert witness in (Cont. page 12)