Subjecting opinions to the immunity test

Jean Graham Hall is co-author of The Expert Witness with Gordon D Smith. Liability is now becoming an important issue for expert witnesses, according to Jean Graham Hall and Gordon Smith.

The expert witness, when requested by a solicitor on behalf of a client contemplating litigation to provide an independent report and give evidence, may well ask: what is my liability?

Their liability depends on whether they are thinking of their work prior to litigation (including the report), or whether they are enquiring about their position in respect of testimony in court.

In the first instance, the expert is undertaking to bring to the exercise a reasonable degree of skill and care. In the second he will be able to claim the absolute immunity accorded to witnesses in a civil action.

In Whitehouse v Jordan Lord Fraser referred to the test of what a party is entitled to expect from an expert he employs: “The standard of skill expected from the ordinary competent specialist has regard to the experience and expertise that a specialist holds himself out as possessing.”

Where there is a contract for the supply of services such as experts would provide, it is normally an implied term of the contract that they carry out the service with reasonable care and skill. If experts fail to do so, they are liable in negligence.

Experts will be covered by professional indemnity insurance for work done in the normal course of their ordinary practice, and this will include any advice given professionally in his capacity as an expert.

The policy of insurance will thus cover any claims for negligence, alleged or actual. The best advice we can give to experts is to look carefully at their insurance policy while providing a thorough and competent report. Experts are only expected to take proper care; they are not necessarily expected to please their clients.

In common with all witnesses, if experts tell lies under oath they are liable to criminal prosecution for perjury, under the Perjury Act 1911.

Witnesses do have absolute immunity from civil actions for reasons stated by Lord Salmon in Sutcliffe v Thackrah: “Judges, barristers, solicitors, jurors and witnesses enjoy an absolute immunity from any civil action being brought against them in respect of anything they say or do in court during the course of a trial, because the law recognises that, on balance of convenience, public policy demands that they shall all have immunity.

“It is of great importance that all shall perform their respective functions free from fear that disgruntled and possibly impecunious persons who have lost their cases or been convicted may subsequently harass them with litigation.

“The law takes the risk of their being negligent and confers upon them the privilege from inquiry.

“The immunity which they enjoy is vital to the efficiency and speedy administration of justice.”