Matters of opinions

The Supreme Court’s decision to remove immunity of suit from expert witnesses might be less dramatic than first expected. Nicholas Heaton reports

 In a landmark judgement in Jones v Kaney (2011), the Supreme Court stripped expert witnesses of the immunity from suit that they have long enjoyed.

The decision has been welcomed by some, who see it as the long overdue removal of an anomalous privilege that deprived clients of compensation if they suffered damage at the hands of an incompetent expert. Others see the removal of immunity as dangerous, threatening a tide of claims against experts from disappointed litigants that would make many professionals unwilling to give expert evidence and cause the remainder to increase fees to cover high professional indemnity premiums, to the detriment of the administration of justice.
These are two extreme positions, but what is likely to be the impact on solicitors ­practising commercial litigation?

The main concerns

A good starting point may be to examine the concerns raised by Lady Hale in her ­dissenting judgment in the Supreme Court. Lady Hale considered that, in the absences of clear evidence of the impact of the changes, removal of experts’ immunity on an “experimental basis” would be ­”irresponsible”.

She identified a number of examples of circumstances in which difficulties might arise if immunity was removed, including: the position of a witness who gives factual evidence, but because of his or her expertise is also asked to give what might be seen as expert evidence, for example a hospital doctor who had treated a patient; the position of joint experts; and most particularly experts in public law cases (such as before mental health tribunals) and in family law cases. Lady Hale also raised the spectre of rising insurance premiums for professional expert witnesses, contractual limitation of liability and, in some fields at least, problems with finding experts willing to testify.

It is certainly true that the Supreme Court’s decision was based more on ­reasoning from first principles than on evidence as to the potential impact of removing immunity. However, a striking thing about the difficulties Lady Hale identified is that they would be unlikely to arise in ­mainstream commercial litigation.

Joint experts are not common in commercial litigation, nor are witnesses giving a mixture of factual and expert evidence. This does not make the points Lady Hale raised any less deserving of consideration, but do point to the fact that the removal of experts’ immunity is unlikely to cause real difficulties in the area of commercial ­litigation.

The concerns Lady Hale identified of ­experts’ rising costs and the scarcity of ­professionals willing to give evidence are also unlikely to be felt to any real extent in commercial cases. The kind of expert instructed in large commercial cases will already carry professional indemnity ­insurance and it would be a surprise if those ­premiums increased dramatically as a result of this judgment.

Moreover, although there might be areas of expertise raising particularly difficult and contentious issues, where it is already ­difficult to find experts willing to testify and where the position may be made worse by the removal of immunity, this is certainly not the case in mainstream commercial ­disputes.

Lady Hale also mentioned the introduction of contractual limits on liability as a potential impact of removing experts’ immunity and one that she apparently did not welcome. It is, in fact, not uncommon for experts to seek to limit their liability in this way already. Such limits are subject to ­regulation as with any other limitation on liability for negligence, and indeed they could provide a flexible tool to prevent ­liability exposure driving experts from the market in areas where this might be ­necessary.

It seems unlikely that the removal of immunity will result in a flood of satellite ­litigation against experts. Most experts are competent. Except in obvious cases of ­negligence, claims against experts will not be straightforward, probably needing the support of another expert to establish the negligence of the defendant. This in itself reduces the risk of vexatious claims.

Colouring opinion

One potential concern is whether the removal of immunity will impact on the pre-litigation advice that an expert provides. Lord Brown said: “Suffice to say that, in my opinion, the most likely broad consequence of denying expert witnesses the immunity accorded to them […] will be a sharpened awareness of the risks of pitching their ­initial views of the merits of their client’s case too high or too inflexibly, lest these views come to expose and embarrass them at a later date.”

Solicitors acting for clients in large commercial claims will probably not share the judge’s enthusiasm for experts becoming less willing to express a clear opinion. Of course, no one is well served by an expert who expresses unjustified opinions that are too robust at the outset of a case, only to water them down as the case develops.

Equally, no one is well served by experts unwilling to express clear opinions at the start of the case, if this is possible. Equivocal expert opinions do not assist settlement and make it difficult for solicitors to give their clients appropriate advice on the ­merits of a claim. It is very much to be hoped, therefore, that this is not the result of the Supreme Court’s judgment.

It should not have this result because experts have for some time been exposed to claims if their pre-litigation advice is negligent and so the Supreme Court’s judgment should, in theory, make no difference.

The reality is, however, that some more timid experts may temper their advice for fear of liability, but good experts will ­continue to provide clear and robust advice when this is justified. For this reason the choice of expert remains critical and the best will be in strong demand.

Nicholas Heaton is a commercial litigation partner at Hogan Lovells