Jones v Kaney

Hilary Term

[2011] UKSC 13

On appeal from: [2010] EWHC 61(QB)

Jones (Appellant) v Kaney (Respondent)

before

Lord Phillips, President

JUDGMENT GIVEN ON

30 March 2011

Heard on 11 and 12 January 2011

Appellant

Respondent

Daniel Shapiro	Charles Phipps
(Instructed by Hill	(Instructed by Berrymans
Dickinson LLP)	Lace Mawer LLP)

LORD PHILLIPS

Introduction

1. “A feature of the trial is that in the public interest all those directly taking part are given civil immunity for their participation…Thus the court, judge and jury, and the witnesses including expert witnesses are granted civil immunity. This is not just privilege for the purposes of the law of defamation but is a true immunity” - Arthur JS Hall & Co v Simons [2002] 1 AC 615, 740, per Lord Hobhouse of Woodborough. In Stanton v Callaghan [1998] QB 75 the Court of Appeal held that the immunity of an expert witness extended to protect him from liability for negligence in preparing a joint statement for use in legal proceedings pursuant to RSC, Ord 38, r 38. The claim in this case relates precisely to such negligence and was, for that reason, struck out by Blake J on 22 January 2010. He certified, however, that the case involved a point of law of general public importance and granted a “leapfrog certificate” under section 12 of the Administration of Justice Act 1969, so that this appeal is brought directly from his decision.

2. The narrow issue raised by this appeal is whether the act of preparing a joint witness statement is one in respect of which an expert witness enjoys immunity from suit. Mr Ter Haar QC for the appellant was careful to emphasise at the outset of his submissions that he was not concerned to do more than establish that an expert witness enjoyed no immunity in relation to this activity. Inevitably, however, his submissions have raised the broader issue of whether public policy justifies conferring on an expert witness any immunity from liability in negligence in relation to the performance of his duties in that capacity. Surprisingly, this immunity has never been challenged in the past. It has simply been accepted that an immunity which protects witnesses of fact applies equally to prevent a client from suing in negligence the expert that he has retained.

The facts

3. In so far as this statement of the facts describes conduct on the part of the respondent, the facts are not proved but asserted in the particulars of claim. They are to be treated as true for the purpose of resolving the question of whether this claim was properly struck out. Understandably, the respondent has not suggested that the facts asserted do not disclose a good cause of action if she is susceptible to liability in negligence.

4. The action has its origin in a road traffic accident that occurred in Liverpool on 14 March 2001. The appellant was stationary on his motorcycle, waiting to turn at a road junction, when he was knocked down by a car driven by a Mr Bennett. Mr Bennett was drunk, he was uninsured and he was driving while disqualified.

5. The appellant suffered significant physical injuries, but these were not of such severity as to dwarf the significance of the psychiatric consequences of his accident. These were post traumatic stress disorder (PTSD), depression, an adjustment disorder and associated illness behaviour which manifested itself in chronic pain syndrome.

6. On 20 March 2001 the appellant instructed solicitors (“Kirwans”) to act for him in personal injury proceedings. Kirwans instructed a consultant orthopaedic surgeon who advised that an opinion from a clinical psychologist would be of help. The respondent is a consultant clinical psychologist. In May 2003 Kirwans instructed her to examine the appellant and prepare a report for the purposes of litigation. She prepared a report dated 29 July 2003 in which she expressed the view, inter alia, that the appellant was at that time suffering from PTSD. Kirwans issued proceedings on 26 September 2003 against Mr Bennett and the Motor Insurance Bureau. The latter was replaced by the relevant insurer (“Fortis”). Fortis admitted liability on 17 February 2004, so that only quantum remained in issue.

7. Pursuant to instructions from Kirwans, the respondent carried out a further examination of the appellant and issued a second report dated 10 December 2004. This stated that the appellant did not have all the symptoms to warrant a diagnosis of PTSD, but was still suffering from depression and some of the symptoms of PTSD. A subsequent report prepared by Dr El-Assra, a consultant psychiatrist instructed by Fortis, expressed the view that the appellant was exaggerating his physical symptoms. The district judge ordered the two experts to hold discussions and to prepare a joint statement. The discussion took place on the telephone and Mr El-Assra prepared a draft joint statement, which the respondent signed without amendment or comment.

8. The joint statement was damaging to the appellant’s claim. It recorded agreement that his psychological reaction to the accident was no more than an adjustment reaction that did not reach the level of a depressive disorder of PTSD. It further stated that the respondent had found the appellant to be deceptive and deceitful in his reporting, and that the experts agreed that his behaviour was suggestive of “conscious mechanisms” that raised doubts as to whether his subjective reporting was genuine.

9. When taxed by Kirwans with the discrepancy between the joint report that she had signed and her earlier assessments the respondent gave what Blake J rightly described as an unhappy picture of how the joint statement came to be signed, summarised as follows:

“	i)
She had not seen the reports of the opposing expert at the time of the telephone conference;
ii) The joint statement, as drafted by the opposing expert, did not reflect what she had agreed in the telephone conversation, but she had felt under some pressure in agreeing it;
iii) Her true view was that the claimant had been evasive rather
than deceptive;
iv) It was her view that the claimant did suffer PTSD which was
now resolved;
v) She was happy for the claimant’s then solicitors to amend the
joint statement. ”

10. Kirwans sought permission to change their psychiatric expert, but the district judge would not permit this. It is the appellant’s case that Kirwans were then constrained to settle his claim for significantly less than the settlement that would have been achieved had not the respondent signed the joint statement in the terms in which she did.

The current state of the law

11.       The immunity of expert witnesses, as propounded by the Court of Appeal in

Stanton v Callaghan, has a long history. This dates back over 400 years – see Cutler v Dixon (1585) 4 Co Rep 14b; 76 ER 886. Thus the immunity was established long before the development of the modern law of negligence and, in particular, the recognition of the possibility of liability for negligent misstatement. It also dates back to an era long before it became common for forensic experts to offer their services under contracts for reward. The immunity has its origin in a reaction to an actual or perceived tendency on the part of disgruntled litigants, or defendants in criminal proceedings, to bring proceedings for libel or slander against those who had given evidence against them. Thus the immunity originally took the form of absolute privilege against a claim for defamation and it extended to all who took part in legal proceedings. In Dawkins v Lord Rokeby (1873) LR 8 QB 255, 263 Kelly CB stated:

“The authorities are clear, uniform and conclusive, that no action of libel or slander lies, whether against judges, counsel, witnesses or parties, for words written or spoken in the ordinary course of any proceeding before any court or tribunal recognized by law.”

12. This privilege was extended, in the form of immunity from suit, to other forms of action in tort. In Hargreaves v Bretherton [1959] 1 QB 45 a man who had been convicted of fraud sought to bring a civil suit for perjury. In striking out the claim as disclosing no cause of action Lord Goddard CJ cited the statement of Lord Mansfield in R v Skinner (1772) Lofft 55 that “neither party, witness, counsel, jury, or judge, can be put to answer, civilly or criminally, for words spoken in office”. He commented:

“That is a perfectly clear statement by one of the greatest common lawyers that ever lived, that for words spoken by a witness ‘in office’, which means, of course, for this purpose in giving evidence, he cannot be put to answer either civilly or criminally.”

In Marrinan v Vibart [1963] 1 QB 528 an attempt to circumvent the immunity by framing a claim in conspiracy to defame was roundly rejected by the Court of Appeal.

13. The typical situation where the immunity was invoked was where a witness or party had given evidence hostile to the plaintiff. A similar protection was afforded to counsel in relation to defamatory allegations made against a party, or indeed anyone else, in the course of his conduct of legal proceedings. This immunity overlapped with a wider immunity enjoyed by a barrister from a claim by his own client for failure to exercise reasonable skill and care in the conduct of litigation on behalf of the client. That immunity was unsuccessfully challenged in Rondel v Worsley [1969] 1 AC 191. In Hall v Simons [2001] 1 AC 615 the House of Lords abolished it on the ground that it could no longer be justified. The barrister is, however, still protected by absolute privilege from a claim in defamation in relation to statements made in the course of the conduct of legal proceedings – see Medcalf v Mardell [2002] UKHL 27, [2003] 1 AC 120, 142, per Lord Hobhouse.

14. I now propose to consider the authorities in greater detail. My particular objects in doing so are first to identify the reasons for the immunity from suit, secondly to examine the circumstances in which it was accepted that this immunity extended to expert witnesses and thirdly to identify the reasoning that was applied first in holding that this immunity extended to barristers and then in holding that it did not protect them from actions for breach of duty of care. In the light of the authorities I shall then turn to consider whether the immunity can be justified.

The authorities

The reasons for the immunity

15.       In Cutler v Dixon the reason given for rejecting the claim was that

“if actions should be permitted in such cases, those who have just cause for complaint, would not dare to complain for fear of infinite vexation.”

The continuous theme that runs through the cases is, in modern parlance, the chilling effect that the risk of claims arising out of conduct in relation to legal proceedings would have. It would make claimants reluctant to resort to litigation. It would make witnesses reluctant to testify. If they did testify, it would make them reluctant to do so freely and frankly. The cases emphasise that the object of the immunity is not to protect those whose conduct is open to criticism, but those who would be subject to unjustified and vexatious claims by disgruntled litigants.

16. There is no need to cite the many early authorities that support these propositions, for the reasons for the immunity were considered relatively recently by the House of Lords in Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435. The issue in that case was whether witness immunity extended to protect police officers who were alleged to have fabricated evidence, as opposed to having given false evidence, from claims of conspiracy to injure and misfeasance in public office. The plaintiffs had been indicted for serious offences, but their trial had been permanently stayed on the grounds of abuse of process on the part of the police. Their Lordships identified the following justifications for witness immunity:

i) To protect witnesses who have given evidence in good faith from

being harassed and vexed by unjustified claims: per Lord Hope of
Craighead at p 446 and Lord Hutton at p 464;
ii) To encourage honest and well meaning persons to assist justice; in
the interest of establishing the truth and to secure that justice may be done:
per Lord Hope at p 447 and Lord Clyde at p 460;

iii)	To secure that the witness will speak freely and fearlessly: per Lord

Clyde at p 461.

17. A further justification was identified by Lord Hope at p 446, namely to avoid a multiplicity of actions in which the value or truth of the evidence of a witness would be tried all over again. This justification had been identified by Lord Wilberforce in Roy v Prior [1971] AC 470, 480. In Darker Lord Hope observed that this justification only applied to evidence given in court, so that it was not relevant to that appeal. He might have added that it only applied where the proceedings had culminated in a decision. In his judgment in this case, Lord Hope suggests that this justification is one that was relevant to barrister immunity, but which is not relevant to witness immunity. I do not wholly agree. A claim against a witness might well involve an assertion that, but for the false evidence, the trial would have had a different outcome, a matter with obvious implications for the measure of damages. I agree, however, that this was not one of the original justifications, nor the most cogent justification, for the general immunity.

The extension of the immunity to expert witnesses

18. A significant distinction between an expert witness and a witness of fact is that the former will have chosen to provide his services and will voluntarily have undertaken duties to his client for reward under contract whereas the latter will have no such motive for giving evidence. The question was raised, but not explored in depth, of whether an expert is normally in direct contractual relationship with his client, or whether his contract is with the solicitor who engages him on behalf of the client. I do not think that this is significant. In either event there is a marked difference between holding the expert witness immune from liability for breach of the duty that he has undertaken to the claimant and granting immunity to a witness of fact from liability against a claim for defamation, or some other tortious claim, where the witness may not have volunteered to give evidence and where he owes no duty to the claimant. It is notable that, before the present case, no one appears to have suggested that this difference called into question whether witness immunity should extend to protect the expert witness against a claim by his own client.

19. The Scottish case of Watson v M’Ewan [1905] AC 480 was a case where a claim was brought against a medical witness in respect of statements made in preparation of a witness statement and similar statements subsequently made in court. It is a case of unusual facts. The appellant was a doctor of medicine who had been retained by the respondent (“the wife”) in respect of proposed proceedings against her husband for separation and aliment. He was subsequently retained by the husband in the same proceedings. In preparing his witness statement he included some very damaging allegations based on matters that he had learned when acting for the wife, which included allegations of taking morphine and planning to procure an abortion. He subsequently gave oral evidence of these matters in the court proceedings. The wife brought an action against him for breach of confidence and for slander, relying on both what was said to the husband’s lawyers and what was said in court. The head note to the report of the decision in the House of Lords suggests that the claim for breach of confidence did not proceed, and that the relevant issues that came before the House of Lords were whether the appellant was immune from a claim for slander in respect of what he said in court and, more pertinently, whether this immunity extended to what he had said when giving his witness statement (“the precognition”). I am however grateful to Lord Hope for his clarification of the nature of this rather confusing litigation. The House of Lords held that the appellant was immune. Giving the leading speech the Earl of Halsbury LC said, at pp 488-489:

“I do not care whether he is what is called a volunteer or not; if he is a person engaged in the administration of justice, on whichever side he is called his duty is to tell the truth and the whole truth. If he tells the truth and the whole truth, it matters not on whose behalf he is called as a witness; in respect of what he swears as a witness he is protected – that cannot be denied – and when he is being examined for the purpose of being a witness he is bound to tell the whole truth according to his views, otherwise the precognition, the examination to ascertain what he will prove in the witness box, would be worth nothing.”

This decision lends some support for extending witness immunity to experts, but it is right to observe that the focus of the House of Lords appears to have been the claim for slander and the case was not concerned with the duty of care that, under the modern law, is owed by an expert to his client, as to which see para 49 below.

20. Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184 involved a claim against forensic scientists in negligence. The scientists had provided post mortem reports to the police that had led to the plaintiff being prosecuted for the murder of her small son. At trial the prosecution offered no evidence so that she was acquitted. She alleged that the defendants had been negligent in the conduct of the post mortem. Drake J held that the defendants were protected by witness immunity. He held that immunity given to a witness extended to cover statements he made prior to the issue of a writ or the commencement of a prosecution, provided that the statement was made for the purpose of a possible action or prosecution and at a time when the possible action or prosecution was being considered.

21. There is no reported case where immunity was invoked against a claim for breach of a duty of care brought against a professional expert witness by his client before Palmer v Durnford Ford [1992] QB 483. In that case the plaintiffs had pursued a disastrous claim against both the supplier and a repairer of a lorry tractor unit. They subsequently sued an engineering expert on the ground that his incompetent report had led them to advance claims on a basis that was invalid, and their solicitors for negligence in engaging an incompetent expert. The expert persuaded the district judge to strike out the claim against him on the ground that he was immune from suit. On appeal the plaintiff did not challenge the proposition that the immunity that was enjoyed by witnesses in general protected a paid expert against a claim by his own client. The issue was the extent of that immunity. Mr Simon Tuckey QC, sitting as a deputy High Court judge, applied by analogy the decision of the House of Lords in relation to the advocate’s immunity from suit in Saif Ali v Sydney Mitchell & Co [1980] AC 198 – a decision that I shall consider in due course. He held, at p 488, that immunity would only extend to what could fairly be said to be work which was preliminary to giving evidence in court, judged perhaps by the principal purpose for which the work was done. Work done principally for the purpose of advising the client was not covered.

22. Until the present case I am not aware that the decision in Palmer v Durnford Ford has been questioned. It was referred to, with approval, in X (Minors) v Bedfordshire County Council [1995] 2 AC 633. One of the issues raised in that case was whether witness immunity protected a psychiatrist from liability in negligence to a child in respect of advice as to whether the likelihood of child abuse rendered it desirable for a child to be removed from her home. The argument was that if the psychiatrist’s views were to lead to child care proceedings, the psychiatrist would have to present those views in court. In the Court of Appeal at p 661 Sir Thomas Bingham MR dismissed this argument. He observed that witness immunity had been treated as analogous to immunity accorded to those in the conduct of proceedings. If the immunity were as wide as that claimed, a barrister or solicitor advising a client on a factual question with a view to proceedings would be immune from an action for negligence. Such a result was inconsistent with authority. Mr Simon Tuckey had reached a correct conclusion in Palmer v Durnford Ford. In the House of Lords Lord Browne-Wilkinson disagreed at p 755, inasmuch as he held that the views expressed by the psychiatrist were protected by witness immunity. He found the reasoning of Drake J in Evans v London Hospital compelling, at least in relation to criminal proceedings. He expressed no view in relation to “ordinary civil proceedings” and said that he intended to cast no doubt on Mr Simon Tuckey’s decision in Palmer v Durnford Ford.

23. Stanton v Callaghan [2000] QB 75 is the leading case on immunity conferred in respect of a claim brought by a litigant against his own expert witness. The case has features in common with those of the present case. The defendant was a structural engineer, retained by the plaintiffs to assist in a claim against insurers in relation to the costs of dealing with subsidence of the plaintiffs’ house. He initially advised that total underpinning was required at a cost of some £77,000. Subsequently, in the course of preparing a joint report with the insurers’ expert witness, the latter persuaded him to agree that infilling with polystyrene, at a cost of only some £21,000, would be a satisfactory remedy. The case was settled on that basis, but the plaintiffs then brought an action claiming that their expert’s change of advice had been negligent. The master refused an application to strike out the claim and the judge upheld him, but the Court of Appeal reversed the decision. After a review of authority, including lengthy citation from Palmer v Durnford Ford, Chadwick LJ summarised their effect as follows, at p 100:

“(i) an expert witness who gives evidence at a trial is immune from suit in respect of anything which he says in court, and that immunity will extend to the contents of the report which he adopts as, or incorporates in, his evidence; (ii) where an expert witness gives evidence at a trial the immunity which he would enjoy in respect of that evidence is not to be circumvented by a suit based on the report itself; and (iii) the immunity does not extend to protect an expert who has been retained to advise as to the merits of a party’s claim in litigation from a suit by the party by whom he has been retained in respect of that advice, notwithstanding that it was in contemplation at the time when the advice was given that the expert would be a witness at the trial if that litigation were to proceed. What, as it seems to me, has not been decided by any authority binding in this court is whether an expert is immune from suit by the party who has retained him in respect of the contents of a report which he prepares for the purpose of exchange prior to trial – say, to comply with directions given under RSC, Ord 38, r 37 - in circumstances where he does not, in the event, give evidence at the trial; either because the trial does not take place or because he is not called as a witness.”

24.       Chadwick LJ’s conclusion appears at pp 101-102:

“In my view, the public interest in facilitating full and frank discussion between experts before trial does require that each should be free to make proper concessions without fear that any departure from advice previously given to the party who has retained him will be seen as evidence of negligence. That, as it seems to me, is an area in which public policy justifies immunity. The immunity is needed in order to avoid the tension between a desire to assist the court and fear of the consequences of a departure from previous advice.”

25. Otton LJ agreed. He drew an analogy between the position of an expert witness and the position of an advocate, and applied the reasoning of the House of Lords in relation to the position of barristers in Rondel v Worsley [1969] 1 AC 191, to which I shall shortly refer. Each had to be given full opportunity to discharge their duties to the court. Otton LJ’s conclusion on the facts of the case before him were as follows:

“On any basis the defendant when attending the meeting with his opposite number enjoyed the immunity. It is true that he did not do so pursuant to RSC, Ord 38, r 38 but the purpose of the meeting was to identify those parts of the evidence and the other’s opinion which they could agree and those which they could not. It was in the public interest to do so. The duty to the court must override the fear of suit arising out of a departure from a previously held position. The expert must be able to resile fearlessly and with dignity. In the instant case both experts resiled from more extreme positions. In theory, at least, the defendants could have sued their expert for placing them in a more adverse position.”

26. This is the extent of the relatively sparse authority in this jurisdiction which deals directly with the immunity of an expert witness to suit by his own client. Before considering whether this Court should allow the law to stand where it is I turn to consider what lessons are to be learned from the position of advocates, for the courts have both compared and contrasted the position of advocates with the position of expert witnesses.

The position of barristers

27. It had long been thought by many that barristers were immune from liability in negligence because they did not enter into contracts with their clients. They could not sue for their fees and thus they owed their clients no duty of care. This reasoning was thrown into question by the decision in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. The immunity of barristers was challenged in Rondel v Worsley [1969] 1 AC 191. No case could have been better designed to illustrate the dangers of being exposed to vexatious litigation. The defendant had accepted a dock brief for a man who was rightly convicted and sentenced to 18 months’ imprisonment. His application for permission to appeal included complaints against his counsel. It was refused. He then commenced proceedings for negligence. It was at all stages found that his claim was hopeless. But the issue of principle of whether an action for negligence could be brought against a barrister was pursued to the House of Lords. Their Lordships unanimously held that it could not. Barristers were immune from liability in negligence. This immunity did not stem from a barrister’s inability to sue for his fees. It was to protect him from the risk of being sued for doing no more than his duty to the court. This would sometimes conflict with what appeared to be the personal interests of the client:

“as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests….” per Lord Reid at p 227.

This rendered counsel particularly susceptible to vexatious suits and immunity was necessary to protect against this. Without this immunity there would be a pressure on the advocate to subordinate his duty to the court to his duty to the client. This would lead him into undesirable prolixity – per Lord Reid at p 229, Lord Morris of Borth-y-Gest at p 251, Lord Pearce at pp 256 and 272, and Lord Upjohn at p 284.

28. Some of their Lordships were also concerned with the prospect of repeated litigation raising the same issues – having failed to prove by appeal that he was wrongly convicted, the defendant would seek to establish this by a claim against his counsel. This would lead to “a trial upon a trial”, “speculation upon speculation”, an “unseemly excrescence upon the legal system” per Lord Morris at pp 249-250.

29. Lord Reid, Lord Morris and Lord Upjohn expressed the view that public policy did not require that a barrister should be immune from negligence in relation to matters unconnected with cases in court. Lord Reid observed at p 229 that immunity was not the only way that the law protected counsel. They also shared with the judge and witnesses the absolute privilege with regard to what was said by them in court. At p 252 Lord Morris compared the immunity of the barrister with that accorded to witnesses in respect of the evidence given by them in court, an immunity which also attached to the parties and to the judge, albeit that the relationship between an advocate and the client differed from the relationship between the client and an adverse witness - p 253. Lord Pearce at pp 268-269 also drew an analogy between the position of advocates and the position of witnesses. He remarked that the reasons underlying the immunity of witnesses were first that there might be a series of retrials and secondly that an honest witness might be deflected by fear of the consequences. He asked at p 270 whether counsel alone of the five ingredients of a trial – parties, witnesses, judge, jurors and advocate – should be the only one to be liable to his client in damages. Lord Upjohn at p 283 remarked that it was because of counsel’s duty to the court in the public interest that immunity from defamation was granted, as it was to the judge and to witnesses. This immunity was just as necessary in respect of his general conduct of the case.

30. It is noteworthy that, in justifying the immunity from suit enjoyed by

counsel, their Lordships compared the position of counsel with that of the others
who took part in the trial process, including witnesses.

31. In Saif Ali v Sydney Mitchell & Co [1980] AC 198 the issue was not whether barristers should have immunity from suit, but the scope of that immunity. The plaintiff brought an action against his solicitors for failure to sue the correct defendant in relation to a road traffic accident. The solicitors joined the barrister who had advised them. The issue was whether the barrister’s immunity extended to his advice on whom to sue. The House of Lords, Lord Keith of Kinkel dissenting, held that it did not. Lord Wilberforce at p 214 distinguished this immunity from the privilege that attached to court proceedings, which protected equally judge, counsel, witnesses, jurors and parties, observing that this had nothing to do with a barrister’s immunity from suit. The following test of immunity, laid down by McCarthy P in the New Zealand Court of Appeal in Rees v Sinclair [1974] 1 NZLR 180, 187 was approved:

“the protection exists only where the particular work is so intimately connected with the conduct of the cause in court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing.”

32. Lord Diplock commented at p 218 that the barrister’s immunity from liability for negligence in the conduct of his professional work granted the Bar a privileged status which the common law did not accord to any other profession or skilled craft. He held that this immunity was justified by two considerations. The first was that the barrister’s immunity for what he said and did in court was part of the general immunity from civil liability which attached to all persons in respect of their participation in proceedings before a court of justice; judges, court officials, witnesses, parties, counsel and solicitors alike – p 222. The second was the undesirability of re-trials of the same issues. Lord Salmon at p 230 remarked that public policy required the barrister to have the same immunity as the judge, juryman or witness for anything he said or did in court, but not for failing to join the right party. Lord Russell of Killowen, who also dissented, at p 233, on the other hand, said that the barrister’s immunity was so that he could perform his public duty in relation to the conduct of litigation without worrying about the possibility of a claim for negligence. He did not consider that this immunity was connected with “a quite different” immunity of judges, witnesses and jurors.

33. It is not easy to trace a common thread in these judgments. The majority, however, come close to equating the position of the barrister with that of the others who take part in proceedings in court. The majority also held that, when a solicitor was acting as an advocate, he enjoyed the same immunity as a barrister.

34. In Hall v Simons the House of Lords swept away the advocate’s immunity from liability in negligence, in court and out, albeit not their absolute privilege from claims for defamation. Counsel for the plaintiffs accepted that expert witnesses enjoyed immunity and did not seek to challenge this. Rather they sought to distinguish expert witnesses from advocates on the ground that the former owed no duties to their clients once they were in the witness box. Their sole duty was then to the court – p 671.

35. Lord Steyn does not seem to have accepted this argument. At p 679 he referred to the analogy of the immunity of those involved in court proceedings. He then referred to an argument in Cane, Tort Law and Economic Interests, 2nd ed (1996), p 237 that urged the case for removing immunity from paid expert witnesses. He was, however, persuaded by an argument that there was little connection between immunity from liability for things said in court and immunity from liability for negligent acts.

36.       Lord Hoffmann accepted counsel’s argument. He said at p 698:

“Mr Scott invited your Lordships to apply by analogy the decision of the Court of Appeal in Stanton v Callaghan [2000] QB 75, in which it was held that an expert witness could not be sued for agreeing to a joint experts’ statement in terms which the client thought detrimental to his interests. He said that this was an example of a general immunity for acts done in the course of litigation. But that seems to me to fall squarely within the traditional witness immunity. The alleged cause of action was a statement of the evidence which the witness proposed to give to the court. A witness owes no duty of care to anyone in respect of the evidence he gives to the court. His only duty is to tell the truth. There seems to me no analogy with the position of a lawyer who owes a duty of care to his client.

Nor is there in my opinion any analogy with the position of the judge. The judge owes no duty of care to either of the parties. He has only a public duty to administer justice in accordance with his oath. The fact that the advocate is the only person involved in the trial process who is liable to be sued for negligence is because he is the only person who has undertaken a duty of care to his client.”

37. I shall shortly consider the extent to which there is a valid distinction between advocates and expert witnesses in the present context. It suffices to note that in Hall v Simons the House of Lords abolished immunity from liability in negligence in the case of the former without questioning the immunity of the latter.

Discussion

38.       I propose to consider the following issues in relation to expert witnesses:

i) What are the purposes of the immunity?
ii) What is the scope of the immunity?
iii) Has the immunity been eroded?
iv) What are the effects of the immunity?
v) Can expert witnesses be compared to advocates?
vi) Is the immunity justified?

vii) Should the immunity be abolished?

What are the purposes of the immunity?

39. Mr Lawrence QC for the respondent did not seek to advance the danger of a multiplicity of proceedings in support of witness immunity. He accepted that that argument had been more cogent as a justification for the immunity from suit that had been accorded to advocates, and yet that argument had not prevailed in Hall v Simons. Rather, Mr Lawrence invoked the chilling factor that potential liability in negligence would introduce in respect of expert evidence. This, he submitted, would operate in two ways. First it would make expert witnesses more reluctant to provide their services at all. He drew attention to concerns expressed by Thorpe LJ in Meadow v General Medical Council [2006] EWCA Civ 1390, [2007] QB 462, paras 225-249, that, in relation to family justice, the demand for experts exceeded supply and that this was a field which was very sensitive to increasing or newly emerging disincentives. This was a theme that Wall LJ had underlined extra- judicially when delivering a paper on the use of experts in family cases at the annual Bond Solon expert witness conference on 6 November 2009.

40. Mr Lawrence placed more emphasis on the other aspect of the chilling factor. This was the reluctance that an expert witness would have to give evidence that was contrary to his client’s interest if there was a risk that this might lead his client to sue him. This risk, he submitted, had become more significant since Lord Woolf, and the provisions of the CPR which gave effect to his recommendations, had emphasised the paramount importance of the duty of an expert to give frank and objective advice to the court. It was important that experts should have the reassurance that, if they complied with this obligation to the possible disadvantage of their clients, they would not be at risk of being sued for failing to have regard to their clients’ best interests.

41. I believe that Mr Lawrence has accurately identified the primary case for conferring immunity from liability in negligence on expert witnesses. As I explained in para 17 above, however, I would not wholly discount the argument that it is undesirable that one court, other than an appellate court, should be required to pass judgment on the correctness of the decision of another court, which is a possible consequence of permitting claims for negligence against expert witnesses.

What is the scope of the immunity?

42. The Court suggested to Mr Lawrence that the requirement identified by Otton LJ in Stanton v Callaghan that an expert must be able to resile fearlessly and with dignity from a more extreme position taken in an earlier advice could present a paradox. The expert might be reluctant to do this through fear of conceding that his earlier advice had been erroneous. In that event he needed protection, not in respect of his revised view, but in respect of his earlier advice. Yet, on the approach in Palmer v Durnford Ford, the earlier advice might not be covered by the immunity. Mr Lawrence’s response to this was that any advice given in possible anticipation of litigation should be covered by the immunity. This would bring within the scope of the immunity a wider class of expert advice than those embraced by the test in Palmer v Durnford Ford, indeed any expert advice where there was a possibility of litigation.

43. Mr Lawrence’s submissions lend support to a point made in opposition to the immunity by Mr Ter Haar. This is that it is difficult to draw the line that confines the immunity. The border is “fuzzy”. It is clear, however, that if the immunity is to be effective in removing inhibitions on what the expert witness is prepared to say at the trial it must protect him in relation to his expression of views before the trial.

Has the immunity been eroded?

44. Mr Ter Haar submitted that the case for conferring immunity on expert witnesses has weakened because, in two respects, the immunity of expert witnesses has been eroded. In Meadow v General Medical Council [2007] QB 462 the Court of Appeal held that expert witnesses had no immunity against disciplinary proceedings before professional tribunals where fitness to practice was in issue. In Phillips v Symes (No 2) [2004] EWHC 2330 (Ch), [2005] 1 WLR 2043 Peter Smith J held that expert witnesses were not immune from being held liable to wasted costs orders. Mr Lawrence accepted the validity of this argument to the extent of submitting that Phillips v Symes (No 2) had been wrongly decided. I do not consider that the susceptibility of expert witnesses to disciplinary proceedings or to wasted cost orders weakens the case for immunity from civil suit, in so far as this case exists. The principal argument advanced for immunity from civil suit is that the risk of being sued will deter the expert witness from giving full and frank evidence in accordance with his duty to the court when this conflicts with the interests of his client. In so far as a witness may be tempted to trim his sails to suit his client, I would expect the risk of disciplinary proceedings or of a wasted costs order to be a deterrent. The argument advanced in support of immunity from suit by the client does not extend to immunity from disciplinary proceedings or wasted costs orders.

What are the effects of the immunity?

45. It is common ground that if the immunity is to be effective it must apply to views expressed not only in court, but in contemplation of, or at least preparation for, possible court proceedings. The vast proportion of civil claims settle before they get to court. For this reason alone it will be in only a small minority of cases that views expressed by an expert will affect the client because of their impact on a hearing in court. In the vast majority of cases those views will impact, not on a judgment of the court, but on the client’s decision whether or not to proceed with an action or on the terms on which he agrees to settle the dispute. It is no coincidence that both in the present case and in Palmer v Durnford Ford the claim has related to the effect of the expert’s opinion on the terms of a settlement. Thus the effect of the immunity is to preclude the client from suing for breach of duty where the expert’s negligence is alleged to have adversely affected such a decision. The question is whether this is necessary in order to ensure that his objectivity is not affected in the minority of cases that do result in court proceedings.

Can expert witnesses be compared to advocates?

46. In Hall v Simons at p 698 Lord Hoffmann, when comparing the position of an expert witness to that of an advocate, said that a witness owes no duty of care in respect of the evidence that he gives to the court. His only duty is to tell the truth. That statement may be true of a witness of fact, but it is not true of an expert witness. Lord Hoffmann was wrong to distinguish between the expert witness and the advocate on the basis that the latter is the only person who has undertaken a duty of care to the client.

47. In some circumstances the difference between an immunity from suit and an absence of legal duty can be readily appreciated. Diplomatic immunity, which can be waived, is an example. In this case the distinction is more elusive. There was a time when it might have been possible to argue that there was a difference between the duty owed by an expert witness to the client who retained him and a conflicting, and overriding, public duty owed by the expert when giving evidence in court; that the former obliged the expert to put forward the best case for his client whereas the latter involved a duty to be candid, even at the expense of his client. The existence of such a difference is implicit in the provision of CPR 35.3 which states that it is the duty of experts to help the court with matters within their expertise and that this duty overrides any obligation to the person from whom the experts have received their instructions or by whom they are paid. Such a distinction lends force to the argument that, once the expert is providing evidence to the court, or preparing to do so, he is no longer bound by a duty to his client and thus cannot be held liable for breach of such duty.

48. In Cala Homes (South) Ltd v Alfred McAlpine Homes East Ltd [1995] FSR 818 Laddie J, at p 841, quoted from an article, “The Expert Witness: Partisan with a Conscience”, in the August 1990 Journal of the Chartered Institute of Arbitrators by a distinguished expert who suggested that it was appropriate for an expert to act as a “hired gun” unless and until he found himself in court where

“the earlier pragmatic flexibility is brought under a sharp curb, whether of conscience, or fear of perjury, or fear of losing professional credibility. It is no longer enough for the expert like the ‘virtuous youth’ in the Mikado to ‘tell the truth whenever he finds it pays’: shades of moral and other constraints begin to close up on him.”

49. Laddie J was rightly critical of the approach of this expert. There is no longer any scope, if indeed there ever was, for contrasting the duty owed by an expert to his client with a different duty to the court, which replaces the former, once the witness gets into court. In response to Lord Woolf’s recommendations on access to justice the CPR now spell out in detail the duties to which expert witnesses are subject including, where so directed, a duty to meet and, where possible, reach agreement with the expert on the other side. At the end of every expert’s report the writer has to state that he understands and has complied with his duty to the court. Where an expert witness is retained, it is likely to be, as it was in the present case, on terms that the expert will perform the functions specified in the CPR. The expert agrees with his client that he will perform the duties that he owes to the court. Thus there is no conflict between the duty that the expert owes to his client and the duty that he owes to the court. Furthermore, a term is implied into the contract under section 13 of the Supply of Goods and Services Act 1982, that the expert will exercise reasonable skill and care in carrying out the contractual services.

50. Thus the expert witness has this in common with the advocate. Each undertakes a duty to provide services to the client. In each case those services include a paramount duty to the court and the public, which may require the advocate or the witness to act in a way which does not advance the client’s case. The advocate must disclose to the court authorities that are unfavourable to his client. The expert witness must give his evidence honestly, even if this involves concessions that are contrary to his client’s interests. The expert witness has far more in common with the advocate than he does with the witness of fact.

Is the immunity justified?

51.       In Darker Lord Clyde remarked, at pp 456-457:

“since the immunity may cut across the rights of others to a legal remedy and so runs counter to the policy that no wrong should be without a remedy, it should be only allowed with reluctance, and should not readily be extended. It should only be allowed where it is necessary to do so.”

With this principle in mind, I would adopt the approach advocated by Lord Reid in Rondel v Worsley at p 228, when considering the immunity from suit enjoyed by advocates:

“the issue appears to me to be whether the abolition of the rule would probably be attended by such disadvantage to the public interest as to make its retention clearly justifiable.”

It would not be right to start with a presumption that because the immunity exists it should be maintained unless it is shown to be unjustified. The onus lies fairly and squarely on the respondent to justify the immunity behind which she seeks to shelter. I turn to consider whether she can do so. I shall consider the various justifications advanced for the immunity that I have identified earlier in this judgment.

Reluctance to testify

52. Is Mr Lawrence right to submit that, if expert witnesses are liable to be sued for breach of duty, they will be discouraged from providing their services at all? I can see no justification for this assumption. All who provide professional services which involve a duty of care are at risk of being sued for breach of that duty. They customarily insure against that risk. In some circumstances the risk of suit and the cost of insurance may be so high that this is a discouragement to provision of those services. I understand that, in some parts of the world, this is true of the services of obstetricians. In Meadow Thorpe LJ drew attention to the shortage of medical experts who were prepared to provide forensic services in child care cases. He said, at para 227, of the family justice system:

“Here most of the required experts are either medically qualified or otherwise qualified in the mental health professions. The majority will be employed under NHS consultant contracts. By contrast to the other justice systems this is a market in which demand exceeds supply. It is thus very sensitive to increasing or newly emerging disincentives. This factor is compounded by a paucity of incentives. The fee for the work will often be paid to the trust employer. The employer may be reluctant to release the consultant from other duties. Keeping up with the demands of the court’s timetable may involve evening or weekend work.”

53. Thorpe LJ was describing the position as it then was, notwithstanding that expert witnesses were immune from suit in relation to their evidence. It does not follow that removing this immunity would constitute a further significant disincentive to their provision of forensic services. Why should the risk of being sued in relation to forensic services constitute a greater disincentive to the provision of such services than does the risk of being sued in relation to any other form of professional service? Furthermore, as Thorpe LJ remarked, the supply of expert witnesses in other fields exceeds demand.

54. Mr Ter Haar referred the Court to a survey carried out at the Bond Solon Annual Expert Witness Conference in November 2010. 106 experts were asked whether they would continue to act as expert witnesses if expert immunity from suit were substantially reduced. 92 answered yes and 14 no. I do not consider that much weight can be attached to a survey of this type, but it does not suggest that immunity from suit for negligence is essential to secure an adequate supply of forensic experts. The case that immunity is necessary to prevent a chilling effect on the supply of expert witnesses is not made out.

Is immunity necessary to ensure that expert witnesses give full and frank evidence to the court?

55. The principal justification for immunity that Mr Lawrence urged was that this was necessary to ensure that the expert performed his duty to the court. This duty required him, whether when attempting to reach agreement with the expert on the other side, or when giving evidence to the court, to give his honest opinion, even if this proved adverse to the case of his own client. Mr Lawrence submitted that the expert would have some apprehension about taking such a course and that immunity from suit was necessary to allay this apprehension.

56. Mr Lawrence could produce no empirical evidence to support this thesis, nor could Mr Ter Haar produce any empirical evidence to disprove it. Research into the position in other common law jurisdictions was inconclusive. As expert witnesses have, to date, had the benefit of immunity, how they will behave if that immunity is removed must be a matter of conjecture or, more accurately, reasoning. But if reasoning is applied, I do not find that it supports Mr Lawrence’s thesis. An expert’s initial advice is likely to be for the benefit of his client alone. It is on the basis of that advice that the client is likely to decide whether to proceed with his claim, or the terms on which to settle it. The question then arises of the expert’s attitude if he subsequently forms the view, or is persuaded by the witness on the other side, that his initial advice was over-optimistic, or that there is some weakness in his client’s case which he had not appreciated. His duty to the court is frankly to concede his change of view. The witness of integrity will do so. I can readily appreciate the possibility that some experts may not have that integrity. They will be reluctant to admit to the weakness in their client’s case. They may be reluctant because of loyalty to the client and his team, or because of a disinclination to admit to having erred in the initial opinion. I question, however, whether their reluctance will be because of a fear of being sued – at least a fear of being sued for the opinion given to the court. An expert will be well aware of his duty to the court and that if he frankly accepts that he has changed his view it will be apparent that he is performing that duty. I do not see why he should be concerned that this will result in his being sued for breach of duty. It is paradoxical to postulate that in order to persuade an expert to perform the duty that he has undertaken to his client it is necessary to give him immunity from liability for breach of that duty.

57. There is here, I believe, a lesson to be learnt from the position of barristers. 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. It would be quite wrong to perpetuate the immunity of expert witnesses out of mere conjecture that they will be reluctant to perform their duty to the court if they are not immune from suit for breach of duty.

Will the diligent expert witness be harassed by vexatious claims for breach of duty?

58. There is an overlap between this question and the last. The rational expert witness who has performed his duty is unlikely to fear being sued by the rational client. But unsuccessful litigants do not always behave rationally. I can appreciate the apprehension that, if expert witnesses are not immune, they may find themselves the subject of vexatious claims. But again I question the extent to which this apprehension is realistic. It is easy enough for the unsuccessful litigant to allege, if permitted, that a witness of fact who has given evidence against him was guilty of defamatory mendacity. It is far less easy for a lay litigant to mount a credible case that his expert witness has been negligent.

59. The present case is unusual in that, on the agreed facts, the respondent has admitted to putting her signature to a joint report that did not express her views. There is nothing vexatious about the present claim. Where, however, a litigant is disaffected because a diligent expert has made concessions that have damaged his case, how is he to get a claim against that expert off the ground? It will not be viable without the support of another expert. Is the rare litigant who has the resources to fund such a claim going to throw money away on proceedings that he will be advised are without merit? The litigant without resources will be unlikely to succeed in persuading lawyers to act on a conditional fee basis. A litigant in person who seeks to bring such a claim without professional support will be unable to plead a coherent case and will be susceptible to a strike out application. For these reasons I doubt whether removal of expert witness immunity will lead to a proliferation of vexatious claims. I am not aware that since Hall v Simons barristers have experienced a flood of such claims from disappointed litigants.

Will there be a risk of a multiplicity of suits?

60. For the reasons that I have already given I do not believe that there will. I have, however, been considering thus far the position of expert witnesses in civil cases. I believe that my conclusions hold good in the case of the duty owed by an expert witness to the client who retains him in a criminal trial. I concede, however, that the risk of vexatious claims from those convicted of criminal offences may be greater. Such claims will, however, be struck out as an abuse of process unless the convicted client first succeeds in getting his conviction overturned on appeal – see Hunter v Chief Constable of the West Midlands Police [1982] AC 529.

61. For these reason I conclude that no justification has been shown for continuing to hold expert witnesses immune from suit in relation to the evidence they give in court or for the views they express in anticipation of court proceedings.

Should the immunity be abolished?

62. It follows that I consider that the immunity from suit for breach of duty that expert witnesses have enjoyed in relation to their participation in legal proceedings should be abolished. I emphasise that this conclusion does not extend to the absolute privilege that they enjoy in respect of claims in defamation. Accordingly, I would allow this appeal.

LORD BROWN

63. Being far from sure that I have anything of value to add to the judgments of

the majority in favour of allowing this appeal, I shall state my central views on the
matter very briefly indeed.

64. Expert witnesses are to be regarded as sui generis in the present context. There are profound differences between them and, on the one hand, witnesses of fact; on the other hand, advocates. (For the purposes of this brief judgment I mean by “an expert witness” a witness selected, instructed and paid by a party to litigation for his expertise and permitted on that account to give opinion evidence in the dispute. I am not referring, for example, to a treating doctor or forensic pathologist, either of whom may be called to give factual evidence in the case as well as being asked for their professional opinions upon it without their having been initially retained by either party to the dispute.)

65. It has long been established that witnesses of fact enjoy complete immunity – immunity, that is, from any form of civil action in respect of evidence given (or foreshadowed in a statement made) in the course of proceedings. It is no less clearly established, following Arthur J S Hall & Co v Simons [2002] 1 AC 615 that advocates have no immunity from suit in respect of any aspect of their conduct of proceedings (save, of course, from defamation claims and the like pursuant to the absolute privilege attaching to court proceedings).

66. The absolute immunity rule which applies to witnesses of fact, as noted by

Lord Hoffmann in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177,
208:

“is designed to encourage freedom of speech and communication in judicial proceedings by relieving persons who take part in the judicial process from the fear of being sued for something they say.”

That aside, witnesses of fact are unlikely to owe the party calling them any duty of care whether in contract or in tort.

67. In stark contrast, not only do expert witnesses clearly owe the party retaining them a contractual duty to exercise reasonable skill and care but, I am persuaded, the gains to be derived from denying them immunity from suit for breach of that duty substantially exceed whatever loss might be thought likely to result from this. These pros and cons have been fully explored in the judgments of other members of the court. Suffice to say that in my opinion the most likely broad consequence of denying expert witnesses the immunity accorded to them (only comparatively recently) by the decisions in Palmer v Durnford Ford [1992] QB 483 and Stanton v Callaghan [2000] QB 75 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. I for one would welcome this as a healthy development in the approach of expert witnesses to their ultimate task (their sole rationale) of assisting the court to a fair outcome of the dispute (or, indeed, assisting the parties to a reasonable pre-trial settlement).

68. The other signal advantage of denying immunity to expert witnesses is, of course, that in the no doubt rare case where the witness behaves in an egregious manner such as is alleged in the instant case or, indeed, otherwise causes his client loss by adopting or adhering to an opinion outside the permissible range of reasonable expert opinions, the wronged client will enjoy, rather than have denied to him by rule of law, his proper remedy. Such cases are to my mind likely to be highly exceptional and for my part I would urge the courts to be alert to protect expert witnesses against specious claims by disappointed litigants – not to mention to stamp vigorously upon any sort of attempt to pressurise experts to adopt or alter opinions other than those genuinely held.

69. Overall, I am satisfied that the balance of advantage here lies clearly in favour of allowing this appeal.

LORD COLLINS

70.       I agree that the appeal should be allowed.

179. If an exception is to be made, the boundaries of that exception must be logical and clear. As I understand it, there is no question of removing the absolute privilege which all witnesses enjoy against defamation, whether or not the person defamed is their client. As I also understand it, there is no question of erecting a duty of care where none would otherwise exist, and thus of rendering an expert witness liable to the other side or to anyone else involved in the litigation apart from her own client. The rationale for the proposed exception is that, without the rule, an expert witness would owe a duty of care to her own client and there is no reason why she should not be liable if she has caused her client loss through the breach of that duty. I am unclear whether the exception would apply only in a case where there was a contractual duty or whether it would apply in a case where there was no contractual duty but there might be a duty owed in tort. Or is it to be assumed that the two are co-terminous? I doubt that because there may be situations where there is no contractual duty, for example because the contract was made with the party’s legal advisers, but where there could be a duty in tort were it not for witness immunity.

180. I ask these questions because, as it seems to me, it would be impossible to confine any exception to run of the mill cases like the present. The present case is a classic personal injury action. The claimant was injured in a road traffic accident. There is a variety of medical evidence available. Some of it comes from the doctors who have been treating him for his injuries. Some of it comes from doctors, and in this case a clinical psychologist, who have been instructed by one side or the other to give their expert opinion purely for the purpose of the litigation. These last are the paradigm case on which the rationale for the proposed exception is based. They have been called in to give their opinion for the purpose of the litigation. They are paid a fee for doing so. They would ordinarily owe a contractual duty to exercise reasonable care and skill, either directly to the client or through the client’s legal advisers. Why should they not be held liable to the client if they fail to exercise that care and skill? After all, as professionals, they will only fail in their duty if they fail the Bolam test (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582); and as witnesses, they will be excused much in the hurly-burly of the trial.

181. These are powerful arguments indeed in the context in which they are deployed. Mr Ter Haar QC, for the appellant claimant, was at pains to exclude consideration of the liability of expert witnesses in other contexts. But I do not think that we can exclude it. If we are to change the law, we must do so in a principled way. If the exception is made, it will clearly have to apply between expert witnesses and their clients in all kinds of civil proceedings, before all kinds of courts and tribunals: the surveyor who gives valuation evidence in a leasehold enfranchisement case; the plasterer who gives quantum meruit evidence in a building dispute; the engineer who explains how a machine works in a factory accident; or the scientist who explains how DNA works in a patent case.

182. All of this may sound straightforward. But even in ordinary civil cases, it is not completely so. A doctor who has treated the patient after an accident or for an industrial disease may be called upon, not only to give evidence of what happened at the time, but also to give an opinion as to the future. Sometimes there may be a fee involved and sometimes not. Is the proposed exception to cover all or only some of her evidence? In many civil cases, there are commonly now jointly instructed experts on some issues. A jointly instructed expert owes contractual duties to each of the parties who instruct her. A party who is disappointed by her evidence will often find it difficult to persuade the court to allow a further expert to be instructed to enable her evidence to be properly tested. But the disappointed party does not have to ask the court’s permission to find an expert who will enable him to launch proceedings against the jointly instructed expert. Because such an expert is extremely likely to disappoint one of those instructing her, she may be more vulnerable to such actions than is the expert instructed by one party alone.

183. How far beyond ordinary civil proceedings is this exception to go? I have already suggested that it would have to apply to essentially private law proceedings in tribunals as well as in courts – thus to proceedings between landlord and tenant in leasehold valuation, service charge, rent assessment and other such disputes; or between employer and employee in unfair dismissal, redundancy, discrimination and breach of contract cases. But what about cases which are essentially public law proceedings? Should the “independent” psychiatrist who is instructed on behalf of the patient in tribunal proceedings under the Mental Health Act 1983 be covered by the proposed exception? Should the educational psychologist or child psychiatrist instructed by the parents of a child with special educational needs to give evidence in tribunal proceedings under Part 4 of the Education Act 1996? These are sensitive and often highly fraught cases in which performing the expert’s duty to the tribunal may well be perceived by the client patient or parent as a breach of her duty towards him.

184. This brings me to family proceedings, in which all of these various situations can arise. The most obvious analogy with an ordinary civil case is ancillary relief proceedings between husband and wife. Expert valuation or forensic accountancy evidence is common. If such experts may be held liable to their clients in other civil proceedings, it is hard to see why they should not be so liable in ancillary relief proceedings. The next example is proceedings between mother and father (or other relatives) about the future of their children. Often, the court will be assisted by a welfare report from a Cafcass officer. That officer is not instructed by either party and so will presumably run no risk of liability to either of them. But sometimes the parties will jointly instruct a child psychiatrist or psychologist to assist the court. Is such an expert to be potentially liable to the disappointed parent even though it is generally accepted that her principal duty is owed, not to the parents, but to the child? And sometimes, even in these private law disputes, the child will be separately represented. Such cases are so difficult and sensitive that it is quite likely that an expert will be instructed on behalf of the child. Is such an expert to be potentially liable to the child?

185. Then there are public law proceedings between a local authority, the child and the parents. There will often be a great deal of expert evidence. Some of the evidence will come from social workers employed or instructed by the local authority. Some of these will be simple witnesses of fact. Some will have carried out expert risk assessments. Many will do both. Are they to be potentially liable to the local authority in respect of all or only some of their evidence? Some of the evidence will come from doctors, nurses and other health care professionals who have treated or looked after the child at critical times. They may be called as witnesses by any party to the proceedings but are usually called by the local authority. I do not know, but it may be that they are sometimes paid a fee for giving an expert opinion to the court. Are they to be potentially liable to whoever called them as witnesses in respect of all or only some of their evidence? Some of the evidence will come from health care professionals who have not treated the child, but have been called in to make an assessment for the purpose of potential or actual care proceedings. They may be instructed by the local authority, the parents or the child’s guardian. Are they to be potentially liable to whoever instructed them? Should any of this depend upon whether the expert is paid a fee specifically for her appearance in court, or provides her assessment as part of her ordinary duties to the health or social care services, who may not be party to the proceedings, or provides it as part of a special arrangement between the agencies?

186. In M (A Minor) v Newham London Borough Council [1995] 2 AC 633, 661, Sir Thomas Bingham MR (with whom Staughton LJ agreed) held that a psychiatrist who interviewed a child in the course of investigating suspected child sexual abuse was not covered by witness immunity: she must have known that if she concluded that the child had been abused by someone living in the household, proceedings to remove the child were likely, but she had never in fact become involved in proceedings about the child. When the case went to the House of Lords, as one of those reported as X v Bedfordshire County Council [1995] 2 AC 633, at pp 754-755, Lord Browne-Wilkinson pointed out that this was factually incorrect: the psychiatrist had made a report which was relied upon in the proceedings. He also concluded that there should be no liability for investigations which had such an immediate link with possible proceedings. But this was in the context of the case as a whole, where it was held that there was no duty of care owed to a child by the professionals involved in deciding whether or not to institute proceedings to protect him from abuse. In D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151, [2004] QB 558, the Court of Appeal held that both doctors and social workers did owe a duty of care to the child when conducting child protection investigations. Discussing the impact of witness immunity, at paras 113-117, Lord Phillips of Worth Matravers MR compared the approach of Lord Browne-Wilkinson in X v Bedfordshire with the “more detailed consideration” of witness immunity in Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435. There Lord Hope had said, at p 448:

“The actions which the police take as law enforcers or as investigators may, of course, become the subject of evidence. . . . But there is no good reason on grounds of public policy to extend the immunity which attaches to things said or done by [police officers] when they are describing these matters to things done by them which cannot fairly be said to form part of their participation in the judicial process as witnesses. The purpose of the immunity is to protect witnesses against claims made against them for something said or done in the course of giving or preparing to give evidence. It is not to be used to shield the police from action for things done while they are acting as law enforcers or investigators.”

Lord Phillips went on to say that it may not be easy to draw the line between investigation and preparation of evidence in cases of suspected child abuse but the Court clearly held that that was where the line should be drawn. To that extent, therefore, the view taken in X v Bedfordshire has been superseded by later authority. There was no appeal to the House of Lords against that aspect of the decision of the Court of Appeal in D v East Berkshire NHS Trust. There may, therefore, be a relatively clear dividing line between conducting the examinations and investigations, on the one hand, and preparing for and giving evidence, on the other.

187. But what these examples also make clear is that in many family cases, if the law is to be changed, there will be some professional witnesses who enjoy immunity in respect of their evidence and some who do not. Some of those distinctions will appear arbitrary. Whereas in the past, all enjoyed the same immunity, in the future only some will do so. This will introduce a dimension to the interactions between the experts, and between the experts and the courts, which was not there before. To what extent will the court, in evaluating an expert’s evidence, take account of that expert’s potential liability to a client or the lack of it?

188. These demarcation problems might have to be suffered if it were clear that the benefits of making the exception outweighed the risks. But it is impossible to say what effect the removal of immunity will have, either on the care with which the experts give their evidence, or upon their willingness to do so. It is certainly possible that it will reduce any tendency to act as a “hired gun” and that would be a very good thing; but it is also possible that it will increase the pressure on an expert to stick to her previous opinion for fear of being sued if she retracts or modifies it. It is possible that it will have no effect at all upon the willingness of experts to give evidence; it is also possible that, in certain fields at least, it will reduce their willingness to do so, or even to become involved in the particular field of practice at all. It is possible that professional indemnity insurance premiums will rise and that fees for giving expert evidence will also rise to take account of this; it is possible that exclusion clauses may be introduced into contracts to give expert evidence, in which case we shall be back where we started.

189. The major concern, however, is not about the effect of making the exception upon expert witnesses. If they are truly expert professionals, they should not allow any of this to affect their behaviour. The major concern is about the effect upon disappointed litigants. I agree with Lord Hope that the object of the rule is to protect all witnesses, the great majority of whom are trying to do a professional job and are well aware of their duties to the court, against the understandable but usually unjustifiable desire of a disappointed litigant to blame someone else for his lack of success in court.

190. For these reasons, it does not seem to me self-evident that the policy considerations in favour of making this exception to the rule are so strong that this Court should depart from previous authority in order to make it. To my mind, it is irresponsible to make such a change on an experimental basis. This seems to me self-evidently a topic more suitable for consideration by the Law Commission and reform, if thought appropriate, by Parliament rather than by this Court.