Loss Prevention Alerts

Alert No 2

July 1998

Summary

It is well settled law that expert witnesses enjoy absolute immunity from actions brought against them in respect of evidence they may give in a court. A recent case raised a novel issue. Does the immunity extend to the preparation of a joint statement indicating what parts of the evidence are, and what are not, in issue where the dispute is compromised before trial?

Facts

The plaintiffs, owners of a dwellinghouse that had suffered movement, were pursuing their insurers for the costs of carrying out total underpinning. Insurers had financed partial underpinning and their case was that this was sufficient to stabilise the property. The plaintiffs retained the defendant to act as expert. He had stated in an early report that partial underpinning was "totally the wrong procedure". Total underpinning would cost about GB Pounds 64,000. The defendant attended a meeting with the insurers' expert. They produced a joint statement in which they both agreed the implementation of a scheme ("the agreed scheme") which would effectively augment the partial underpinning carried out. The cost of the agreed scheme would be about GB Pounds 21,000. The defendant amended his report and sent it to the plaintiff's solicitors. He did not discuss the agreed scheme with the solicitors and after sending his report he went overseas, his return scheduled around the time of the beginning of the trial.

Faced with the agreed statement the plaintiffs had little alternative but to accept the money paid into court. They alleged that the defendant had been negligent to propose the agreed scheme because that scheme was not feasible. Further, it was alleged that the defendant ought to have consulted with the plaintiffs' solicitors before endorsing the agreed scheme and that he was in breach of duty in going abroad shortly after delivering his report without leaving a contact number so making himself unavailable to explain his ideas until the day of the trial.

Held

The Court of Appeal allowed the defendant's appeal and held that the immunity extended to the preparation of a joint report even though the matters were not tried before the judge. Further, there was no obligation on the defendant to notify the plaintiffs and/or their solicitors before advancing the case set out in the joint statement, nor had the fact that the defendant had left the country as soon as he completed his final report been the cause of any loss suffered by the plaintiffs. The case against the defendant was struck out.

Comment

The defendant succeeded not on the basis that he had not been negligent (that issue was not addressed) but because of the policy that expert witnesses should have immunity against suit: hardly a vindication of his professional judgment. The facts of this case are a cautionary tale. The Court held that there was no duty on the expert to inform the lay clients or the solicitors or to seek instructions from them before recording the concession in the joint statement. That is undoubtedly a correct statement of the law but as a matter of practice experts would be well advised to consult with solicitors especially where the concession is based on an assertion of law or fact made by the other expert. Further, the Court held that no action lay against the expert because he left the country without giving a contact telephone number just a few days before the trial; the Court held that any such failure could not have caused loss. But experts should ensure, especially in the days or weeks before trial, that they can be contacted during office hours.

A number of cases have confirmed Lord Woolf''s view that the expert's responsibility is to help the court impartially on the matters within his expertise. But the expert is also paid by the client to act as his technical advisor. The expert should extend to his litigation client the same professional courtesies he would to any other. At the very least, this means being available to explain his opinion and any change in his opinion.

Reference

Stanton & Stanton v. Callaghan and Others Court of Appeal 8th July 1998.