In most technical or complex disputes, expert evidence is required.  A party’s case is often dependent on the evidence that the expert retained by that party gives.  If the expert does a sudden volte face either when meeting, as ordered by the Court, with the expert retained by the other side and agreeing a joint statement.

or when giving evidence, it is likely that the party that retained that expert either will lose at trial.  Alternatively, they may be “forced” into a settlement on terms substantially less advantageous to those that it had been originally advised that it would obtain.

Although the instructing party has paid for the services of the expert and heavily relied on the expert, that party will be left without a remedy.  Currently the expert has immunity from suit for anything he or she does during the course of the proceedings.  This principle was underlined in the recent case of Paul Wynne Jones v Sue Kaney [2010] EWHC 61 (QB), where the expert had felt pressured into signing a joint statement with the other side’s expert even though she did not agree with it and it did not reflect the terms she had agreed with the other side’s expert.  She had not previously seen the report of the other side’s expert.

This means that the expert had, in effect, breached her duty of care to the party instructing her, and the (lower) Court felt handcuffed by a previous decision of the Court of Appeal.  The Court struggled to find a way to break free and noted that the scope of the immunity had been reduced in recent years, however it was not able to escape the shackles of the Court of Appeal’s decision, which was binding on it. 

The Court could not rationally justify why the cloak of immunity only descends on the expert in relation to acts or omissions in preparing for or in the course of trial.  The immunity does not extend to advice given by an expert before proceedings are issued, most often in the initial report and on which the decision is made to issue proceedings.  

The Court, clearly uncomfortable with the fact that it was not able to provide a remedy to the party who it clearly thought, had been let down by its expert, suggested that the time was ripe for the whole question of the expert’s immunity to be reconsidered by the Supreme Court (what was the House of Lords).

So, while parties should not expect the Supreme Court to sanction a return to the bad old days of the expert acting as a hired gun and the watering down of the expert’s overriding duty to the Court, the Supreme Court may decide that the time is right for the immunity to be lifted or at least, substantially watered down.  Let’s wait and see whether the Supreme Court takes up the offer to bring the law in line with what many would consider to be commonsense.

For more information on these issues please contact

James Levy

or your usual Lewis Silkin contact