Professional Negligence and Liability

Chapter 24



24.1 This chapter examines the particular issues that arise when a professional, of any discipline, is alleged to have been negligent in the context of acting as an expert witness. The law in this area has undergone significant change as a result of Jones v. Kaney,2 in which the Supreme Court removed witness immunity in respect of the liability of an individual retained as an expert witness for breach of a duty of care owed to their client. This chapter examines the new, and much more limited, scope of witness immunity in respect of witnesses giving expert opinion evidence and considers the issues that will arise when seeking to establish liability on the part of those who are retained as expert witnesses, outside the scope of that immunity. 24.2 Professional persons normally owe their clients both a contractual and a tortious duty to exercise reasonable care in carrying out their professional duties. Sometimes those duties of care are extended beyond the immediate client to third parties adversely affected by the professional’s negligent conduct.3 However, when professionals are giving, or preparing to give, expert opinion evidence in court or tribunal proceedings, there are countervailing arguments based on public policy in relation to the administration of justice, which may result in immunity from suit, a ruling that no duty of care is owed, or the striking out of proceedings as an abuse of process.4 24.3 Until relatively recently, these public policy arguments were seen as requiring immunity from civil liability for all those participating in proceedings in court: judge, advocate and witnesses.5 Latterly, the precise juridical basis for and proper boundaries of this immunity have come under greater scrutiny: advocates have lost their immunity6 and the courts have wrestled with the problem of drawing a satisfactory line around those matters in respect of which a witness will have immunity, propounding various tests.7 In Jones v. Kaney 8 the Supreme Court swept away immunity for expert witnesses in respect of claims based on duties of care owed to their clients, at least in civil, and probably also in other, proceedings. The scope for striking out claims against expert witnesses as an abuse of process is also now more limited than previously thought.9 The possibility of a challenge under Article 6 of the European Convention on Human Rights to any immunity from suit has encouraged the courts, where possible, to treat the self-same public policy considerations as negating a duty of care, rather than as founding an immunity.10 However, this course is only open where the cause of action is one which depends on a duty being owed to the claimant (and where there is no binding precedent already establishing that the expert owes a duty of care). 24.4 The high-profile cases of Sally Clark, and a number of other mothers, whose convictions for murdering their children have been overturned on appeal following criticisms of the expert evidence relied on by the prosecution at their trial,11 have focused the spotlight on the role and responsibilities of expert witnesses and the question of whether redress should be available for their failings.12 24.5 In the wake of those cases, a report by the House of Commons Science & Technology Committee in March 2005 identified a number of flaws in the way the courts handle scientific evidence.13 Whilst the focus of the report was on forensic evidence deployed in criminal prosecutions, many of the observations and recommendations are potentially of more general application to the use of expert evidence in other fields. Efforts have subsequently been made to ensure high standards of expert evidence. Home Office pathologists are subject to a scheme of registration and audit designed to maintain high standards in the quality of the forensic evidence submitted to the court on behalf of the prosecution and they may find themselves subject to disciplinary procedures and removal from the register if found not to be worthy of the “kitemark”.14 Professional regulatory bodies, such as the GMC, have extended their role to adjudicating complaints against “rogue experts” within their discipline.15 In civil proceedings, the CPR aims to discourage the use of experts who are mere “hired guns” for the parties16 and has formalised the duties that the expert witness owes the court.17 Expert witnesses are nowadays expected to be familiar with the court’s procedure and their duties within that procedure, as well as being experts in their given field. Both the parties and the court will be less tolerant than was the case in pre-CPR litigation of expert witnesses who fail to abide by the rules or to meet court deadlines. Expert witnesses may well be specifically accredited and trained as such (in addition to their professional qualifications); and they may be subject to codes of conduct in respect of their work as expert witnesses that are promulgated by their professional body, or by organisations such as The Expert Witness Institute,18 as well as being expected to be familiar with the “Guidance for the instruction of experts in civil claims 2014”, published by the Civil Justice Council and referred to in the Practice Direction to CPR Part 35.19 24.6 In sum: the dominant theme has been the curtailment of traditional immunities from suit; miscarriages of justice have highlighted the potential for further injustice if redress against an expert witness is denied in a proper case; and there has been a trend towards the “professionalisation” of the role of the expert witness. It is now necessary to re-examine expert witnesses’ immunity and liabilities against that backdrop. 24.7 The principal topic addressed in this chapter is the rationale for, limits of, and exceptions to, the immunity accorded to those giving expert opinion evidence, as now limited in scope following the decision in Jones v. Kaney.20 The remainder of the chapter examines:
  • (a) in what circumstances the courts will refuse to impose a duty of care on an expert witness21;
  • (b) the duties of an expert witness and the relevance of professional codes of conduct to the content of the duties owed22;
  • (c) establishing breach23;
  • (d) the extent to which the doctrine of abuse of process remains relevant as a bar to proceedings against experts24; and
  • (e) particular problems of causation and loss that arise in the context of such claims.25

Reference should also be made to the chapter dealing with professional negligence in the relevant field of expertise. For the procedures governing the use of expert evidence in civil proceedings, -4.201 above. For a discussion of the liability of experts who are acting as an arbitrator or carrying out an expert determination, rather than acting as expert witnesses, et seq.

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