Doug Wass and Will White discuss three cases that have focused on the role and position of the expert witness, and the practical implications that can be drawn from them, highlighting the changes to future case law
This article looks at three recent cases that have raised the importance of the expert witness and the conclusions that can be deduced.
In the first case the court allowed an expert to appear for the defendant, despite the expert having seen confidential and privileged information belonging to the claimant. The court also decided that, because the expert had acted as a consultant for the defendant, it did not mean the expert lacked the independence necessary to act as an expert.
In the second case the court ordered the disclosure of an expert report obtained and subsequently disregarded by the claimant before the issue of proceedings as a condition of permitting the claimant to instruct a new expert.
The third case saw the court rule in favour of ending the blanket immunity that has been afforded to expert witnesses for more than 400 years.
Meat Corporation of Namibia Ltd v Dawn Meats (UK) Ltd [2011]
It is well established that expert witnesses can only be called with the court's permission and that an expert's primary duty is to the court. An expert's duties are set out in both Civil Procedure Rules (CPR) Part 35 and Practice Direction 35, with CPR Part 35.3 stating that: 'It is the duty of experts to help the court on the matters within their expertise.' This duty overrides any obligation to the person from whom an expert has received instructions or by whom they are paid. Practice Direction 35.2 also states that: 'Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.'
There is, however, a distinction between an expert who has been instructed to give evidence in proceedings and an expert who has been instructed in an advisory capacity only. The full rigours of CPR Part 35 and Practice Direction 35 apply to the former category, but not the latter.
MeatCo revolved around a dispute regarding a meat distribution agreement. The court granted both parties permission to instruct an expert on the meat industry. In May 2010 the claimant, Meat Corporation of Namibia Ltd (MeatCo), approached a Mrs Burt-Thwaites (referred to in the case only as B) to fulfil that role. When MeatCo first contacted B, she explained that she was waiting to hear from the defendant, Dawn Meats (UK) Ltd (Dawn), with a view to an engagement as a consultant and that she would obviously not be able to act as MeatCo's expert if she agreed to such a role with Dawn.
However, MeatCo alleged that in June 2010 B changed her mind and indicated a willingness to act (but did not enter into a formal retainer). Consequently, MeatCo provided B with privileged and confidential information in relation to the dispute, including information about MeatCo's views on the merits of the litigation and its approach to settlement. B subsequently informed MeatCo that, due to diary commitments and a possible conflict of interest with other activities, she would not be able to fulfil the role (the conflict of interest being a reference to the consultancy role that B had since accepted and through which Dawn was sponsoring B to be a member of an industry association).
Dawn subsequently appointed B as its expert and MeatCo challenged the appointment. It submitted that B was in possession of its confidential and privileged information that put her in a position in which she could no longer act for Dawn. In support of its argument MeatCo relied on Bolkiah v KMPG [1999]. In Bolkiah KPMG had provided extensive forensic accountancy services to Prince Jefri Bolkiah, and had been given access to confidential information concerning the extent and location of his assets. Prince Jefri subsequently sought to restrain KPMG from acting for an opponent in litigation. The House of Lords granted the injunction holding that KPMG had not discharged the heavy burden on it to preserve the confidentiality of the privileged information.
In response, B's solicitors acknowledged that communications between B and the claimant should remain confidential and should not be divulged to Dawn or the court. B also offered an undertaking to the court not to disclose any of the information.
MeatCo also argued that B, having been retained as a consultant by Dawn, lacked the degree of independence necessary to act as an expert witness. Moreover, it was alleged that B herself had been involved in one of the transactions being called into question by MeatCo.
Experts are not in the same position as solicitors
Mann J rejected the challenge to B acting as an expert. In Bolkiah the House of Lords was heavily influenced by the fact that KPMG had been providing litigation support services and was essentially performing the same role as a solicitor, who has a particularly strict obligation to ensure that information belonging to former clients remains confidential. The relationship between MeatCo and B was not a quasi-solicitor/client relationship, and, therefore, B should not be treated as a solicitor. B had received privileged information from MeatCo, but various people outside a solicitor/client relationship might receive privileged information and it was not necessarily appropriate to treat them as if they were in the same position as solicitors.
Furthermore, B was never formally engaged by MeatCo. She received the privileged information in the course of enquires as to whether she would act as an expert. That did not deprive the information of its confidentiality, but it did mean that the relationship between B and MeatCo was very different from that of an engaged solicitor and client. The privilege and the confidentiality in the information had to be maintained, but this was 'adequately' covered by B's undertaking not to disclose the information and the fact that B's evidence would not be based on any of that information.
Lack of independence
Turning to the second ground of challenge, that B lacked the degree of independence necessary to be an expert witness, Mann J applied the principles established in Armchair Passenger Transport Ltd v Helical Bar plc & anor [2003]. In particular, he noted that while it was always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings, the existence of such an interest, whether as an employee of the parties or otherwise, did not automatically render the evidence of the proposed expert inadmissible. It is the nature and extent of the interest or connection that matters, not the mere fact of the interest or connection. The primary considerations for the court are whether the proposed expert has sufficient expertise and whether they are both aware of the primary duty to the court and willing to carry out that duty.
In MeatCo B's consultancy role seemed to be very limited. Her services did not come anywhere near creating the sort of connection that would imperil her independence. Mann J recognised MeatCo's allegation that B had been involved in one of the relevant transactions, but also highlighted that:
- this allegation had been made late in the proceedings;
- it had been denied by B; and
- there was insufficient evidence in front of the court to stop B from acting as an expert on that ground alone.
Mann J also noted, however, that it was open to MeatCo to challenge the degree of B's independence in cross-examination at trial, which might affect the weight that would be attached to her evidence.
Tubb v JD Wetherspoon Plc [2011]
The claimant, Ricky Edwards-Tubb, was employed by the defendant, JD Wetherspoon (JDW). Edwards-Tubb suffered a fall at work. After the accident he appointed solicitors who, in turn, contacted three orthopaedic surgeons, with a view to instructing one of them in relation to Edwards-Tubb's claim. As is required by the Pre-Action Protocol for Personal Injury Claims, the surgeons' identities were disclosed to JDW and no objections were made. One of the surgeons, a Mr Jackson, produced an expert report and Edwards-Tubb then issued proceedings against JDW. However, when he issued and served his particulars of claim the medical report attached was by a different surgeon, a Mr Khan.
Not only was Khan an additional surgeon to those to that JDW had clearly consented, but his report revealed that Edwards-Tubb had already consulted one of the original surgeons. JDW therefore applied to have Jackson's earlier medical report disclosed. It accepted that litigation privilege attached to draft experts' reports, but relied on the need for a party to seek the court's permission before calling an expert or submitting an expert's report (CPR 35.4(1)), combined with the previous Court of Appeal decision in Beck v Ministry of Defence [2003] that a party should only be given permission to substitute one expert witness for another on condition that it discloses the first expert's report. Edwards-Tubb, on the other hand, argued that permission to appoint a new expert should only be made conditional on disclosing the first expert's report, where the party had taken the decision to change experts after proceedings had been issued.
A deputy district judge granted JDW's application and allowed Edwards-Tubb to rely on the new expert report only on condition that he disclose the earlier report. Edwards-Tubb successfully appealed that decision, with HHJ Denyer QC discharging the condition on the basis that Edwards-Tubb could not be forced to waive privilege in the earlier report. However, JDW made a second appeal to the Court of Appeal that restored the original decision.
In allowing the second appeal, Hughes LJ stated that he was unable to see any difference of principle between the change of an expert instructed for the purpose of proceedings pre-issue and a change of an expert only instructed, for the same purpose, post issue. The policy behind the rule was to discourage 'expert shopping' and this applied at all stages of litigation.
Hughes LJ decided that the condition on disclosure was a matter for the court's discretion, but it should be a usual, not exceptional, order. There may be perfectly good reasons for a party to wish to instruct a second expert. This means that it will often, perhaps normally, be proper to allow a party the option, at their own expense, of seeking a second opinion. It would not usually be right simply to deny them permission to rely on a new expert and force them to rely on the existing expert, in whom they have, for whatever reason, lost confidence.
However, this may not be the end of the matter. Where an expert report is rejected and disclosed to the other side as a condition of instructing another expert, the other side is entitled to rely on the rejected report at trial. In those circumstances it may be appropriate for the party relying on the rejected report to call the author as a witness so that they can be cross-examined on the contents of their report.
Jones v Kaney [2011]
In Jones the claimant, Mr Jones, was injured in a traffic accident. Jones believed that the accident caused him to suffer from post-traumatic stress disorder and he instructed Dr Sue Kaney, a clinical psychologist, to act as his expert witness. Dr Kaney initially supported Jones' claims. However, after a telephone conversation with the defendant's expert, Dr Kaney signed a joint statement with the defendant's expert that was not only damaging to Jones' case, but also stated that Dr Kaney had found Jones to be 'deceptive and deceitful in his reporting'.
It later emerged that the joint statement, as drafted by the opposing expert and amended by the defendant's solicitor, did not reflect what Dr Kaney had agreed in the telephone conversation and had been signed by her without comment or amendment. Dr Kaney later claimed that she had felt under pressure to agree to it. Jones was refused permission to instruct a new expert witness and he was subsequently constrained to settle his claim for significantly less than would have likely to have been achieved had Dr Kaney not signed the joint statement.
Following the initial settlement Jones launched a professional negligence claim against Dr Kaney. The claim was struck out by the judge, on the basis that expert witnesses are immune from being sued (as confirmed by Stanton & anor v Callaghan & ors [2000]). However, given that Jones raised a question of general public importance, namely whether public policy continued to justify granting expert witnesses immunity, leave was given to appeal the case straight to the Supreme Court.
An end to expert immunity
In his judgment, Lord Phillips said that:
'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.'
He also stated that in the present case:
'The onus lies fairly and squarely with the respondent to justify the immunity behind which she seeks to shelter.'
The defendant attempted to do this by arguing that removing the immunity would have a 'chilling effect' on the conduct of legal proceedings. The consequences of taking such a step would include the following:
- expert witnesses would be reluctant to provide their services to parties to litigation as a result of the risk of being sued by clients even when claims are unjustified; and
- once instructed, experts would be more reluctant to give evidence that was contrary to their clients' interests if there was a risk that this might lead their clients to sue them. This would inhibit experts from complying with their duty to give frank and objective evidence to the court.
For a decisive majority of 5:2, the key consideration was the public policy requirement that a party who has suffered a wrong should not be left without a remedy. Lord Dyson described this rule as 'a cornerstone of any system of justice'. Therefore, a party who has instructed and paid an expert to provide professional services should not be denied the opportunity to recover compensation for losses arising out of an expert's failure to provide those services with reasonable skill and care.
The Supreme Court was clearly influenced by the fact that the modern day expert witness receives remuneration for providing professional services. For Lord Phillips (who gave the leading judgment), this was an important distinction between expert witnesses and witnesses of fact, who continue to benefit from blanket immunity from suit. Lord Phillips also noted that the immunity was established before the development of the modern law of liability for negligent misstatement and at a time when it was not common for forensic experts to offer their services in return for remuneration.
Furthermore, the majority was not convinced that removing the immunity would have a 'chilling effect' of the kind described by the claimant. Experts, who might otherwise be reluctant to provide their services, could protect their position by obtaining insurance (just like any other type of professional). Nor did the majority accept that removing the immunity would undermine experts' duties of independence. Expert witnesses are instructed by their clients to comply with their obligations to the court. Therefore, expert witnesses who give free and frank evidence to the court will be fulfilling their duties to both the court and their clients.
Lord Phillips also noted that a 'witness of integrity' who was persuaded, for example, by the arguments of the other side's expert would 'concede his change of view'. Lord Phillips readily accepted that there might be experts who lacked that integrity but, in those cases, fear of being sued was less likely to be the determining factor than loyalty to the client or a disinclination to admit having made a mistake in the first place.
The majority dealt with the suggestion that removing the immunity would give rise to vexatious claims in various different ways but, in broad terms, they appear to have taken the view that it would be difficult for a lay client to bring such a claim and it was unrealistic to assume that this would be a common occurrence. In support of this argument, Lord Phillips said that he was unaware that the abolition of barristers' immunity in Arthur JS Hall and Co v Simons and Barratt v Ansell & ors and Scholfield Roberts v Hill [2000] had led to a substantial increase in claims against barristers. To the extent that there was a risk of disappointed litigants bringing vexatious claims, the need to protect expert witnesses was outweighed by the need to ensure that litigants with a valid claim were not deprived of a remedy.
Conclusions
MeatCo demonstrates that there is 'no property in a witness' - even when acting in a capacity as an expert. It also shows that parties should, wherever possible, avoid disclosing privileged information to their expert witnesses. This applies even where the expert in question enters into a formal retainer because expert witnesses are required to state the substance of all material instructions, whether written or oral, on the basis of which their report is written. If an expert fails to comply with this obligation, the court may order the disclosure of documents containing those instructions or permit the expert witness to be cross-examined on them.
Litigants should also be aware that, while they may be given permission to call employees or other connected persons as expert witnesses, they run a risk in doing so. This is because the expert witness is likely to be cross-examined at trial on the nature of their relationship with the party calling them and this may result in the court attaching less weight to the evidence of that expert witness. Consequently, unless it is absolutely imperative to do so, parties should endeavour to steer away from engaging experts with whom they have any connections. In particular, when there is any evidence to suggest that an expert has been involved in the facts of the litigation, parties should make every effort to find a replacement. Mann J was unwilling to stop B from acting in MeatCo because the allegation by MeatCo had been made at such a late stage that not all of the supporting evidence had been submitted to the court and, moreover, the facts were disputed. However, Mann J went on to suggest that had he been able to assess the factual background and supporting evidence in full, and had B been shown to have been involved in one of the transactions, she would not have been allowed to act as Dawn's expert.
In Tubb the claimant's problems stemmed from the fact that the defendant was made aware that a different expert had been instructed at an earlier stage. This was, at least in part, a result of the requirements of the Pre-action Protocol for Personal Injury Claims. In commercial litigation, parties who wish to retain the flexibility to change experts, should try to avoid disclosing the identity of their expert and apply for permission to call expert evidence by reference to a particular discipline (in accordance with CPR 35.4(2)(a)), rather than by referring to a named individual.
However, Hughes LJ recognised that, as a result of his judgment, parties are likely to ask one another whether there has been a prior report and/or to ask the court to make any order giving permission to call expert evidence conditional on the disclosure of any earlier reports, whether or not there is some positive indication that there has been one. This increases the importance of parties ensuring that they instruct the 'right' expert witness at their first attempt. It also means that parties should, at the beginning of a dispute, consider instructing experts to act in an advisory capacity, rather than to give evidence in proceedings. It should remain possible to retain privilege in reports prepared by expert advisers and such reports can then be scrutinised before a decision is taken to instruct the expert for the purposes of the proceedings. However, this approach may be more costly because it may not be possible for a party to recover the costs involved in initially instructing an expert in an advisory capacity, even if the advice is shown to be robust and that party is eventually successful in the litigation.
The obvious practical consequence of the decision in Jones is that expert witnesses are now at greater risk of being sued. This may lead to higher insurance premiums and instructing solicitors should check that any expert that they retain on behalf of their client has sufficient professional indemnity insurance in place. In turn, both solicitors and their clients should be aware of the possibility that increased insurance premiums will be passed straight to the client in the form of larger experts' fees. However, it is unlikely that any increase in fees will be at a prohibitive level.
Solicitors and their clients should also note the added difficulty that will arise when a court permits the use of a jointly instructed expert. Particularly with cost-effectiveness in mind, paragraph 7 of Practice Direction 35 encourages the court to consider permitting the use of a single expert where possible. In such a scenario, there will be a heightened possibility that the expert's evidence will lead to a claim since, as Lady Hale suggested in her dissenting judgment, it will be very difficult for the expert not to disappoint at least one of the parties. Consequently, finding someone with the requisite level of knowledge who is willing to act as a joint expert may become increasingly difficult and, unless the courts show a consistent willingness to offer protection to such individuals, the availability and use of joint experts may begin to diminish significantly.
As the Supreme Court noted, it will be very difficult to allege that an expert's performance in the witness box was negligent. In Jones the claimant's complaint stemmed from the defendant's (alleged) negligence in conceding too much to the other side. However, the facts of Jones are extreme and, in the more usual run of things, it will be difficult to convince a court that experts have acted negligently in being persuaded by the other side's expert, given that the rules are designed to encourage experts to reach agreement on as many issues as possible.
Therefore, future claims are most likely to arise in situations where an expert gives positive advice at the beginning of a claim and it subsequently becomes clear that the initial advice is unsustainable. In that situation, a party may have wasted substantial costs in bringing speculative litigation and/or thrown away the opportunity of securing an early settlement. Such costs are likely to mean that the most significant effect of this decision will be to encourage experts to be more circumspect in their initial advice.
By Doug Wass, partner, and Will White, assistant solicitor, litigation and dispute resolution department, Macfarlanes LLP.
E-mail: doug.wass@macfarlanes.com; will.white@macfarlanes.com.
Armchair Passenger Transport Ltd v Helical Bar plc & anor [2003] EWHC 367 (QB)
Beck v Ministry of Defence [2003] EWCA Civ 1043
Bolkiah v KMPG [1999] 2 AC 222
Meat Corporation of Namibia Ltd v Dawn Meats (UK) Ltd [2011] EWHC 474 (Ch)
