The UK Supreme Court (the successor to the House of Lords) has, in Jones v Kaney  UKSC 13 (Jones), abolished the long-standing immunity experts have enjoyed in respect of liability for negligence arising from giving or assisting with evidence in litigation. The Supreme Court followed the House of Lords' landmark decision in 2002, Hall v Simons  1 AC 615 (Hall), which abolished immunity from negligence suits for advocates. This e-bulletin examines the current legal position in Hong Kong in respect of expert and advocate immunity and examines the potential future impact of Jones and Hall in Hong Kong.
On 30 March 2011, a 7 judge panel of the Supreme Court (by a majority of 5 to 2) abolished the immunity from negligence suits expert witnesses had enjoyed for a long time. Historically, the two main justifications for the immunity were as follows:
- if experts were potentially liable for negligence, they would be discouraged from providing their services at all; and
- expert immunity was necessary to ensure that (in addition to performing his duty to the client) an expert performed his duty to the court by giving an honest opinion even if it proved adverse to his client's case, without the fear of being held liable for failing to have regard to his clients' best interests.
Lord Phillips (leading the majority) began with the premise that there is "a general rule that every wrong should have a remedy and that any exception to this rule must be justified as being necessary in the public interest".
In relation to the first justification, the majority saw no reason to assume that experts would not agree to provide services if the immunity was removed. Lord Phillips stated that "all who provide professional services which involve a duty of care are at a risk of being sued for breach of that duty. They customarily insure against that risk".
In examining the second justification, the Court considered the House of Lords' decision in Hall, in which a 7 judge panel unanimously abolished the immunity of advocates from negligence suits. Lord Phillips went on to draw an analogy between the position of an advocate and an expert. He held that, although experts and advocates both owe a divided loyalty (on the one hand to their clients but on the other to the court and to the administration of justice), these duties are non-conflicting in nature. Each undertakes a duty to provide services to the client, and in each case, those services 'include' an overriding duty to the court and the public, which may require the advocate or the expert to act in a way which does not advance their client's case. In other words, the duty to the court replaces the duty to the client once the expert deals with the court. Lord Phillips pointed out that it was paradoxical that, in order to persuade an expert to perform his duty to his client (which he chose to undertake), it was necessary to give him immunity from liability for breach of that same duty.
The judgment in Jones does not disturb the immunity of experts (or indeed any other witnesses giving evidence at trial) from defamation actions arising from their evidence. What it will allow, however, is suits on the part of disappointed litigants in cases where for example an expert's negligence has prompted them to bring a hopeless case, or where an expert negligently concedes a point which is contrary to his opinion when signing a joint report with the other side's expert (which was the allegation in Jones).
The Hong Kong Position
There have not been any Hong Kong cases to date which even considered the question of expert immunity in relation to negligence suits, let alone which applied the leading English authorities upholding the immunity prior to its abolition by the English Supreme Court in Jones.
The Hong Kong Court has not seriously examined the question of immunity for advocates either. Registrar C Chan, sitting in Chambers in Lam Chi Kong v Tai Siu Ching & Anor  HKCU 975 unreported, held that barristers' immunity from claims for negligent performance of their duty as advocates is a long established rule which continues to apply in Hong Kong, but there has been no other judicial confirmation of this 'rule'.
Although the position is not clear, it is probably valid to assume that, at present, immunity for experts from claims for negligence arising from the performance of their duty also exists in Hong Kong.
Assuming both immunities exist in Hong Kong, the question is whether the Hong Kong courts will abolish them on the basis of Hall and/or Jones. If and when these matters are considered by the Hong Kong courts, we would expect that they are approached in the same way as the English Court has done in Hall and Jones, which is to examine whether policy considerations justifying the immunities remain in Hong Kong, having regard to changes over the years to: (i) the needs of society; (ii) the law of negligence; (iii) the function of the legal and other professions; (iv) the administration of justice; and (v) public perception.
Our view is that the days of both expert and advocate immunity are numbered in Hong Kong, but precisely when the end will arrive is another matter.
Experts and their insurers will undoubtedly have concerns over the potential number of claims the Jones decision could prompt. Whilst in practice, establishing a negligence claim against an expert will probably not be easy if and when the immunity is removed, uncertainty in this area will probably lead to higher premiums and perhaps higher experts' fees. It is perhaps worth noting that the removal of advocates' immunity in England & Wales in 2002 as a result of Hall did not lead to a huge number of claims against barristers or solicitor advocates. In addition:
- Experts and potential experts need to consider whether the increased risk of suit that this development engenders outweighs the benefit to them of agreeing to give expert evidence and, if so, to review the terms of their engagements to try to limit their potential liability;
- Experts and potential experts should review their insurance policies to ensure that there is sufficient cover for the expert work they are taking on;
- At the same time, insurers should re-assess cover offered to professionals who commonly act as experts to take account of the risk of the immunity being lifted.