Construction Experts' Immunity Lifted

Background: It is well established at law that no-one can bring a civil claim against a witness for statements made whilst giving evidence. For 400 years this also covered experts in providing their expert opinion. We should know, as Stephen Clarke, Head of Construction, was involved in the previous leading case on this point in Stanton v Callaghan [2000].

Inroads were made some 10 years ago when immunity from law suits was lifted for barristers. A further significant inroad to immunity recently took place in relation to experts as a result of the decision of the Supreme Court (previously the House of Lords) in Jones v Kaney [2011].

Facts of the case: In March 2001 Mr Jones was knocked off of his motorbike by a disqualified drunk driver. Mr Jones's solicitors advised him to seek the opinion of a clinical psychologist, which was obtained from Ms Kaney, who diagnosed Mr Jones as suffering from post-traumatic stress disorder.

Fortis insurers, acting for the defendant, admitted liability for Mr Jones's claim but disputed the amount of compensation claimed and instructed their own expert. After meeting with the other expert, Ms Kaney agreed a joint statement (prepared by the other expert) which stated that Mr Jones did not and never had suffered from PTSD and had been exaggerating his symptoms.

As a result of the joint statement Mr Jones received reduced damages and was understandably unhappy. When pressed by his solicitors, Ms Kaney admitted that she had not read the other expert’s reports at the time of the meeting and that the joint statement did not reflect what was agreed at the meeting (but that she had felt under pressure to sign the statement).

So Mr Jones brought a claim against his own expert, Ms Kaney, in negligence.

Court decision: The Court questioned whether there were any disadvantages that would arise from abolishing experts' immunity that could justify keeping it.  It held that there were no disadvantages and that the threat of claims may actually improve the quality and care that experts put into their opinions. Much like advocates, expert witnesses are paid to provide a professional service and it was considered that their clients are entitled to expect a minimum level of service.

Impact of the case: The majority of claims against experts will be less clear cut than the facts of this case and the hurdles of proving a claim against an expert still apply.  Potential difficulties include:

• proving an expert should have supported a claimant’s position and claim more. 
• proving the opinion was the main cause of any failure in the litigation and not other factors.

However, this decision may make experts more cautious and their opinions more limited and careful.

It is also anticipated that professional indemnity insurance premiums may rise and one can only wait to see whether this will be passed onto clients.

It should also be noted that it is arguable this has only opened up claims against experts on the grounds of negligence. The general immunity which protects witnesses against claims for defamation or slander is likely to still cover experts.

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