Supreme Court Abolishes Rule On Expert Witness Immunity

On 30 March 2011, in a landmark decision, the Supreme Court abolished the four hundred year rule on expert witness immunity. As a result, expert witnesses instructed in civil litigation proceedings will no longer benefit from immunity from suit in respect of evidence given by them in court or arbitration or work which is carried out in preparation for the giving of such evidence.

Background

The facts

In March 2001, the Claimant had been hit by a car which resulted in physical and psychiatric injuries. He instructed solicitors with a view to bringing a claim in personal injury against the driver of the car. The solicitors in turn instructed the Defendant expert, a clinical psychologist, to prepare a report on the Claimant's psychiatric injuries for the purposes of the personal injury claim. The Defendant concluded that the Claimant was suffering from post traumatic stress disorder ("PTSD") as a result.

The Claimant subsequently issued proceedings and liability was admitted by the driver of the car, who instructed his expert to examine the Claimant and prepare his own report. The driver's expert concluded that the Claimant was exaggerating his symptoms. The judge ordered the two experts to hold a discussion and prepare a joint statement recording the outcome of that discussion to assist the Court at trial.

The Defendant expert signed a joint statement which wrongly recorded that she agreed with the driver's expert and found the Claimant to have exaggerated his symptoms. As a result of this joint statement, the Claimant's case was so badly damaged that he felt bound to settle his claim for a far lower sum than he might else have achieved.

The claim

As a result, the Claimant brought a claim in negligence against the Defendant expert. The Defendant expert applied for the claim to be sruck out on the basis of the Court of Appeal's decision in Stanton v Callaghan [2000] QB 75, that expert witnesses were entitled to immunity from suit for breach of duty in respect of joint statements prepared for the Court. The first instance Judge granted the strike-out application but gave the Claimant permission to leap-frog the Court of Appeal and appeal directly to the Supreme Court as a matter of public importance.

History of the Rule

The rule on witness immunity dates back four hundred years. It overlapped with the general immunity from suit enjoyed by advocates until this was abolished by the House of Lords in 2000 (Hall v Simons [2002] HL 615), on the...