Expert Witnesses No Longer Enjoy Immunity for Negligence
Due to the technical nature of many construction disputes expert witnesses are often used in an attempt to resolve them. In practice, the use of an expert can be invaluable, particularly when there are complex technical, causation, or quantum issues. The court or tribunal can be greatly assisted by an expert, such that many issues of fact or quantum can be agreed between the experts before the case even reaches trial.For more than four hundred years expert witnesses enjoyed immunity from being sued for negligence when acting as experts in legal proceedings and that position seemed certain to continue but on 30 March 2011 the English Supreme Court, brought those four hundred years of immunity to an abrupt end. The case in question was Jones v Kaney. The case concerned Jones’s claim against his own expert. He wanted to sue the expert he had used in his court case for negligence. The key issue was not so much whether the expert was negligent, but whether as a matter of law expert could be sued for negligence at all.
Jones’s expert had decided, after a telephone conversation with the other party (the defendant), to switch sides. Jones’s expert signed a joint statement with the defendant’s expert. That statement included comments such as that she found Jones (for whom she was acting) to be “deceptive and deceitful”. Perhaps not surprisingly this was very damaging to Jones’s claim. As a result the Jones had to settle for significantly less than he would otherwise have done.
Jones was understandably aggrieved at the actions of his expert. He had appointed Kaney, was paying Kaney, and yet had ended up with his own expert signing a joint statement with the other party to the dispute, effectively acting against him. Jones did not consider that experts are there to assist the court and are meant to act independently.
Nevertheless there was evidence that Jones’s expert had been negligent in the way she had acted. But there was a serious problem for Jones in pursuing a claim in negligence against his expert. Even if he could prove the expert had acted negligently, the existing case-law was that experts could not be sued in negligence when acting in court proceedings (such immunity also used to apply to solicitors and barristers when acting for their clients).
In English litigation, the duties of an expert are codified in Part 35 (Experts and Assessors) of the Civil Procedure Rules. Further guidance is given in Practice Direction PD35 and, in June 2005, the Protocol for the Instruction of Experts was issued as an Annex to Part 35. The aim of the Protocol was to offer guidance to experts, and those instructing them, in the interpretation of Part 35. It sets standards to be followed for the use of experts, for the conduct of the experts, and for those who instruct them. An expert must also comply with the standards required by his or her own profession. The Academy of Experts (the largest body of expert witnesses in the United Kingdom) also has its own ‘Code of Practice for Experts’ which sets out the minimum standards to be adhered to by its members.
In arbitration, the duties of an expert are not governed by CPR rule 35, but in practice these rules are often used as guidance. Fundamental principles such as the requirement for independence are all observed, as are the relevant professional codes and standards. Above all, the expert’s duty is to the tribunal and not to the instructing. party.
After a detailed consideration of the case-law, the court ruled that experts should no longer have such immunity. This brings them broadly into line with the position of barristers and lawyers. This marks a new era for experts who if they are now shown to be negligent, then clients will be able to take action to recover any resulting losses.
Other Cases relating to Expert Witnesses
Stevens v Gullis (CA)  The Times 6 October,  BLR 394
A defendant builder’s expert failed to comply with the Practice Direction on Experts and Assessors and failed to understand his duty to the court. The builder was debarred from calling that expert, and his counterclaim was therefore dismissed. The Court of Appeal upheld this decision. STEVENS V GULLIS 
Hammersmith Hospitals NHS Trust v Troup Bywaters and Anders  ENV LR 343
The defendant argued that the claimant’s expert was too highly qualified in his specialist field to comment properly on the defendant’s performance as a general building service engineer. The court found that both sides’ experts were from the same profession, and the claimant’s expert’s greater expertise in a specialist field could not disqualify him as an expert witness.
Robin Ellis Ltd v Malwright Ltd  BLR 81
In a dispute over building works, the parties’ experts were directed to produce a joint statement. Subsequently, the parties’ positions changed and one party wanted to use the statement in cross-examination against the other. It was held that the statement was prepared to assist the litigation, and was therefore not privileged.
National Justice Compania Naviera SA v Prudential Assurance Co Ltd  2 LLR 68 (the ‘Ikarian Reefer’)
This is the leading case on the duties of expert witnesses in civil cases. The evidence should be the independent product of the expert, uninfluenced by the exigencies of litigation. An expert must provide independent assistance to the court by way of objective, unbiased opinion, and must never become an advocate. The expert should state the facts on which his or her opinions are based and should not omit any material facts that detract from his or her opinion. National Justice Compania Naviera SA v Prudential Assurance Co Ltd