Wednesday, 17 March 2010
Expert witnesses: May we sue them?
An "expert" witness has to be accepted as such by the court and, once accepted, may give an OPINION on a matter provided that it is within his area of expertise. An expert enjoys immunity from being sued in negligence. This rule - established by the Court of Appeal (Civil Division) in Stanton v Callaghan  QB 75 - is based on "public policy". In the civil case of Jones v Kaney  EWHC 61 (QB) this rule has been questioned by Mr Justice Blake even though, as a matter of precedent, it bound him. It remains to be seen whether the matter will go to the Supreme Court and, if it does, whether they will uphold the rule or sweep it to one side. The Supreme Court might decline to hear an appeal.
In 2002, the House of Lords removed the former immunity from action enjoyed by barristers in the conduct of litigation - Arthur J S Hall v Simons  1 AC 615 but the considerations for advocates are not necessarily the same as those for witnesses. If the Supreme Court does sweep the protection away, will the door be opened to a considerable number of claims? That is a distinct possibility. Is there is a case for prospective overruling to prevent such claims? The notion of prospective overruling was raised by the House of Lords in National Westminster Bank v Spectrum Plus  UKHL 41. Of course, removing the immunity might reduce the number of persons willing to provide expert evidence. Also, perhaps it is really in the interests of justice that a witness can give truthful evidence without fear of subsequent legal action. It is also unclear how a change might affect criminal cases. In a number of instances, there have been miscarriages of justice based on what was, at the time, convincing evidence given by a confident expert witness - e.g. Angela Cannings case and the Sally Clark case.