District Judge John Mitchell looks at the likelihood of claimants gaining retribution if they have been let down by an expert


Richard Karling was charged with murdering a woman. His defence team instructed a pathologist to carry out a post-mortem and to comment on the cause of death.



The doctor's conclusion was consistent with that of the Crown's pathologist - the deceased almost certainly died of suffocation. At the trial in which the pathologist was called to give evidence for the Crown, Mr Karling was convicted. Fortunately for him, evidence later emerged that found there was no scientific basis for a conclusion of suffocation. The conviction was overturned and Mr Karling sued his own pathologist, alleging negligent breach of contract (Karling v Purdue [2004] ScotCS 221).



Judgment was given on an interlocutory application and no findings of negligence were made. The Court of Session struck out the claim on the well-known principle that a witness has immunity in relation to giving evidence.



Witness immunity has been recognised for generations. In the words of the then Lord Chancellor, Lord Halsbury, in Watson v McEwan [1905] AC 481: 'It is settled law and cannot be doubted.' However, as the Court of Appeal explained in Stanton v Callaghan [2000]



1 QB 75, the extent of the immunity is still in the course of development with no rigid boundary between situations where immunity is granted and those where it is not. Giving evidence - whether orally or by report - is of course covered, and immunity can apply to preparatory work.



'Well, I'm surprised anybdy wuld trust someone called Dr Z!'

According to Lord Justice Chadwick, immunity extends only to what can fairly be said to be preliminary to giving evidence in court, judged perhaps by the principal (or, as Lord Justice Nourse preferred, substantial) purpose for which the work was done. Therefore, it would cover investigation (as in Karling) and attending meetings with other experts. In Stanton, for example, a claimant retained a surveyor to provide an expert's report on the issue of whether a property that had suffered subsidence should be underpinned. The claim had to be settled after both parties' experts changed their opinions and agreed when they met to discuss their reports. The Court of Appeal held that the expert was protected by immunity.


Lord Justice Otton said: '[It is in the public interest that] the expert must be able to resile fearlessly and with dignity... There was no duty to inform the lay clients or the solicitors or to seek instructions before recording the concession in the joint statement.'



However, not all reports are protected. Those intended to be used in court are included, but not reports produced solely to advise a party on the strength of his case or as an aid in negotiation. In Hughes v Lloyds Bank plc [1998] PIQR P98, a general practitioner was sued for negligently understating the injuries the claimant suffered following a road accident. The Court of Appeal held that the GP's letters were provided only for the purpose of negotiation and he would probably not have been her expert at trial. Therefore, there was no immunity.



Does immunity make the expert witness's duty to the court unenforceable other than by excluding his evidence for breach of part 35 of the Civil Procedure Rules 1998 (CPR)? As Lord Justice Jacob recently commented in the Civil Justice Quarterly ([2004] CJQ 400), it is unlikely that an expert would be prosecuted for perjury save in exceptional circumstances and, although a complaint can be made to his professional body, there are practical difficulties in taking disciplinary action.



Courts can criticise an expert in stringent terms. In Re AB (Child Abuse: Expert Witnesses) [1995] 1 FLR 181, for example, Mr Justice Wall concluded that 'by failing to disclose the controversial nature of his research, Dr [P] lacked objectivity and omitted factors which did not support his opinion'. But these criticisms are not always publicised so widely as to act as an adequate warning to others who are considering retaining the expert.



However, as the recent decision of Phillips v Symes [2004] EWHC 2330 (Ch); [2004] All ER (D) 270 (Oct) shows, there is a further sanction. The claim was an administration action in which Dr Z, a consultant adult psychiatrist, was retained by the Official Solicitor to provide an opinion on whether the impecunious defendant lacked mental capacity. He gave evidence that the defendant was not fit to give reliable evidence, and that he was unable to manage his own affairs. The cause was attributed to a stroke the defendant had suffered in 1980 and his capacity to effect any transaction for more than 20 years was thereby called into question.



During cross-examination, Dr Z had to concede that the defendant did not in fact lack capacity. The hearing had lasted four days, and after a judgment in which Dr Z and another psychiatrist were severely criticised, the claimants joined him as a defendant, seeking a costs order against him.


At a preliminary hearing in which no findings were made against Dr Z, Mr Justice Peter Smith held that, in principle, a costs order could be made against an expert witness 'who by his evidence causes significant expense to be incurred and does so in flagrant disregard of his duties to the court'. This did not breach the general immunity rule, which in any event was not absolute. If witnesses told lies, they could be punished for perjury or contempt of court. Experts should be in the same position as advocates, against whom wasted costs orders could be made.


Mr Justice Peter Smith added: 'It seems to me that in the administration of justice, especially, in spite of the clearly defined duties now enshrined in CPR 35 and practice direction 35, it would be quite wrong of the court to remove from itself the power to make a costs order if appropriate against an expert.'


He also rejected the argument that an expert witness should be warned of the court's power. 'I am of the view... that the only warning required to be given to an expert is the self-evident one set out in the CPR and the declaration he signs... One would expect an expert to be alive to the potentially adverse consequences in the event that he breaches his duty to the court.'


Notwithstanding this decision, the best way of avoiding an errant expert is to observe two basic rules. When selecting an expert, rely on an informed personal recommendation. Do not assume the expert knows about part 35 CPR and the practice direction. Send him a copy.


District Judge Mitchell sits at Bow County Court