For over 400 years expert witnesses have been in a privileged position in relation to their expert testimony in litigation claims.
For a long time it was felt that it was in the interests of justice that experts be given a right of immunity from being sued in relation to the evidence they provide to the parties in a claim and to the court.
The justification for this general rule of immunity from suit was that the law wanted to ensure that expert witnesses should feel unfettered to give their honest testimony in litigation claims without fear of being sued by their instructing clients.
In a Court of Appeal case in 1998 known as Stanton -v- Callaghan, the court revisited the duty owed by an expert both to his client and to the court and the rule of experts being immune from suit by his instructing client.
The court considered these issues against the general background following the implementation of the Civil Procedure Rules which laid down an express duty that an expert witness owed to the court in giving both written and oral evidence.
The conclusion of the Court of Appeal reasserted the 400 year old rule, holding that it was a matter of public policy for the immunity to apply in order to avoid tension between an expert's wish to assist the court and fear of the consequences of a departure from previous advice provided to a client.
Fast forward to 2011 and the issue of an expert's immunity came up for consideration once again by the Supreme Court in respect of a motorcycle accident claim in which the Claimant sought compensation for physical and psychological injury.
The Claimant's initial psychologist's report diagnosed post-traumatic stress disorder (PTSD) but in a subsequent report, the expert diagnosed depression with some symptoms of PTSD.
The experts for both the Claimant and Defendant then discussed the issues and prepared a Joint Statement which was signed by both experts, in accordance with the Civil Procedure Rules.
The Joint Report concluded that the Claimant was experiencing no more than adjustment reaction and raised the question of whether he was in fact genuine in reporting his symptoms.
The result of this report was very damaging to the Claimant's claim and as a result the Claimant was obliged to agree a much lower settlement of compensation than might otherwise have been achieved.
The trial judge felt bound by the rule on an expert's immunity, but gave leave for the Claimant to appeal direct to the Supreme Court on this issue.
By a majority of 5-2, the Law Lords held that the rule on expert's immunity should be abolished.
Giving their reasons for allowing the appeal, Lord Phillips rejected the argument that expert witnesses would be discouraged from providing their services if they were liable to be sued for breach of duty.
He said: "It was always believed that it was necessary that barristers should be immune from suit in order to ensure that they were not inhibited from performing their duty to the court.
Yet removal of their immunity has not in my experience resulted in any diminution of the advocate's readiness to perform that duty.
" The decision is welcome news in my opinion to many litigation lawyers who stake their client's claims on the strength of an expert's opinion in claims that require expert testimony in order to prove their client's claim.
As an experienced litigation lawyer I have never understood nor agreed with the justification for the immunity from suit.
Litigation claims succeed or fail on the strength of an expert's opinion.
In personal injury claims, such as in the case considered by the Supreme Court, the core evidence in corroborating an injured party's claim is the medical report.
If that medical report is fundamentally flawed or if the expert decides later in the proceedings that he wishes to change his initial opinion without the justification of any new factual information, then that claim will be left in serious jeopardy of failing or, as in the above case, the claim for damages being compromised.
The implications for a Claimant is therefore very serious and can in fact leave a Claimant without compensation and with a Defendant's costs to pay if the case fails.
It has long been, in my opinion, unfair and inequitable for an expert witness to be permitted to change his expert testimony at a whim without repercussion.
The Supreme Court was correct in removing this antiquated rule as every professional providing a service to his client must do so with reasonable care and skill.
This decision now places experts within the universal rule that where an expert gives an opinion outside the range of reasonable expert opinions within his field of expertise, he will be in breach of his duty to his client and liable to a claim.
For a long time it was felt that it was in the interests of justice that experts be given a right of immunity from being sued in relation to the evidence they provide to the parties in a claim and to the court.
The justification for this general rule of immunity from suit was that the law wanted to ensure that expert witnesses should feel unfettered to give their honest testimony in litigation claims without fear of being sued by their instructing clients.
In a Court of Appeal case in 1998 known as Stanton -v- Callaghan, the court revisited the duty owed by an expert both to his client and to the court and the rule of experts being immune from suit by his instructing client.
The court considered these issues against the general background following the implementation of the Civil Procedure Rules which laid down an express duty that an expert witness owed to the court in giving both written and oral evidence.
The conclusion of the Court of Appeal reasserted the 400 year old rule, holding that it was a matter of public policy for the immunity to apply in order to avoid tension between an expert's wish to assist the court and fear of the consequences of a departure from previous advice provided to a client.
Fast forward to 2011 and the issue of an expert's immunity came up for consideration once again by the Supreme Court in respect of a motorcycle accident claim in which the Claimant sought compensation for physical and psychological injury.
The Claimant's initial psychologist's report diagnosed post-traumatic stress disorder (PTSD) but in a subsequent report, the expert diagnosed depression with some symptoms of PTSD.
The experts for both the Claimant and Defendant then discussed the issues and prepared a Joint Statement which was signed by both experts, in accordance with the Civil Procedure Rules.
The Joint Report concluded that the Claimant was experiencing no more than adjustment reaction and raised the question of whether he was in fact genuine in reporting his symptoms.
The result of this report was very damaging to the Claimant's claim and as a result the Claimant was obliged to agree a much lower settlement of compensation than might otherwise have been achieved.
The trial judge felt bound by the rule on an expert's immunity, but gave leave for the Claimant to appeal direct to the Supreme Court on this issue.
By a majority of 5-2, the Law Lords held that the rule on expert's immunity should be abolished.
Giving their reasons for allowing the appeal, Lord Phillips rejected the argument that expert witnesses would be discouraged from providing their services if they were liable to be sued for breach of duty.
He said: "It was always believed that it was necessary that barristers should be immune from suit in order to ensure that they were not inhibited from performing their duty to the court.
Yet removal of their immunity has not in my experience resulted in any diminution of the advocate's readiness to perform that duty.
" The decision is welcome news in my opinion to many litigation lawyers who stake their client's claims on the strength of an expert's opinion in claims that require expert testimony in order to prove their client's claim.
As an experienced litigation lawyer I have never understood nor agreed with the justification for the immunity from suit.
Litigation claims succeed or fail on the strength of an expert's opinion.
In personal injury claims, such as in the case considered by the Supreme Court, the core evidence in corroborating an injured party's claim is the medical report.
If that medical report is fundamentally flawed or if the expert decides later in the proceedings that he wishes to change his initial opinion without the justification of any new factual information, then that claim will be left in serious jeopardy of failing or, as in the above case, the claim for damages being compromised.
The implications for a Claimant is therefore very serious and can in fact leave a Claimant without compensation and with a Defendant's costs to pay if the case fails.
It has long been, in my opinion, unfair and inequitable for an expert witness to be permitted to change his expert testimony at a whim without repercussion.
The Supreme Court was correct in removing this antiquated rule as every professional providing a service to his client must do so with reasonable care and skill.
This decision now places experts within the universal rule that where an expert gives an opinion outside the range of reasonable expert opinions within his field of expertise, he will be in breach of his duty to his client and liable to a claim.
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