Expert Witneses Beware


The luxury that has been afforded to expert witnesses and their enjoyment of immunity from civil suit in relation to their participation in legal proceedings has come under further scrutiny as a result of the decision of the UK Supreme Court earlier this year in the case of Jones v Kaney [2011] where the majority judgment of the UK Supreme Court removed the immunity from civil liability arising over alleged negligence of an expert witness. In that case, Ms. Kaney, a consultant psychologist, issued two medico-legal reports which affirmed that Mr. Jones suffered from post traumatic stress disorder. However, in a joint report, Ms. Kaney conceded that Mr. Jones did not suffer from post traumatic stress disorder and Mr. Jones alleged that he was required to compromise his proceedings for a substantially lower sum than he would have received had Ms. Kaney not subscribed to this joint report. Ms. Kaney, indicated that she had been put under pressure to agree the joint report by the opposing expert. The upshot of this important judgment is that Ms. Kaney could not rely upon the traditional immunity from civil suit as a result of her participation in these legal proceedings. The position as now adopted by the UK Supreme Court clearly has far reaching consequences in relation to all expert witnesses in all types of legal proceedings including ordinary civil proceedings, family proceedings and criminal proceedings, although it should not affect an experts’s immunity from defamation claims arising from their evidence at trial..

In considering the position of expert witnesses and their potential vulnerability to liability as a result of their participation in legal proceedings in this jurisdiction, it is useful to note our Supreme Court pronouncements in this area in the case of EOK v DK [2001] where it was reaffirmed that expert witnesses enjoy immunity from suit in relation to their participation in legal proceedings unless they have acted in a manner which clearly amounted to an abuse of their position or with some malicious purpose.

The fact that our Constitution seems to be at the root of this long established principle of law would seem to suggest that the recent position adopted by the UK Supreme Court is unlikely to be followed in this jurisdiction. However, in highlighting the issue of immunity for expert witnesses, the UK Supreme Court should serve as a useful reminder that such immunity is not an automatic right that prevails in all circumstances and that there is a corresponding duty on the part of expert witnesses under Irish law to act in a manner which does not constitute an abuse of their position or to act in a manner which can be deemed malicious.

The seminal authority on duties and responsibilities of an expert witness in legal proceedings is set out in the UK case of National Justice Compania Naviera SA v Potential Insurance Company Limited, the “Ikerian Reefer” [1993] where Mr. Justice Creswell’s list of duties and responsibilities of an expert witness have been cited with approval by numerous Irish judges in the Superior Courts. It is important to appreciate that the availability of immunity may depend upon an expert’s conformity to such duties and responsibilities.

The Creswell principles are summarised as follows;

(i) Expert evidence presented to the Court should be the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.

(ii) An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise.

(iii) An expert witness should state facts or assumptions on which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion. (iv) An expert witness should make it clear when a particular question or issue falls outside his expertise.

(v) If an expert’s opinion is not properly researched because he considers insufficient data is available then this must be stated with an indication that the opinion is no more than a provisional one.

(vi) If after the exchange of reports an expert witness changes his view on the material having read the other side’s expert report or for any reason, this change of view should be communicated (through legal representatives) to the other side without delay and if appropriate to the Court.

(vii) Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.

There is no strict requirement that an expert must belong to one of the traditional professions and it is actual expertise, knowledge and qualifications which place an individual in the position of an expert. Indeed, in the case of McFadden v Murdock [1867], a shopkeeper was treated by the Court as an expert in view of his evidence as to the amount of waste that might be generated by a grocery store! That the UK Supreme Court has placed such persons exposed to liability in relation to their role as an expert witness in circumstances where it may be not possible for such persons to obtain professional indemnity insurance is nothing short of an extraordinary development.

Ms. Justice Macken stated at a legal conference on 23 June 2011 “I like to see expert witnesses coming into court and also like to see them admit they don’t know the answers to everything.”. One is reminded in that context of the proverb by Levi Strauss: “An expert knows all the answers - if you ask the right questions.”.

Joe O'Malley