Construction disputes come in all shapes and sizes. Due to the specialist and technical nature of the work, when a problem arises between the parties, invariably they look to professionals to assist them in the resolution of their dispute. Lawyers and/or claims consultants are appointed to advise on the alleged breaches of duty and, depending on the issues in dispute, technical experts are engaged too (habitually so in professional negligence cases). Those experts are then paid to give their clients opinions on issues relating to liability and/or quantum in relation to contractual and noncontractual time and money type disputes. Those views and opinions are often relied upon by the client and disputes are either fought on the basis of the opinions given or settled accordingly.
Until very recently, professional witnesses benefited from a partial immunity from suit for negligence; broadly speaking experts could not be sued on the basis of public policy even if they behaved in an egregious manner in the litigation, the consequence being that the client had no remedy for its loss. However, following the recent landmark decision of Jones v Kaney, the Supreme Court has abolished the partial immunity previously enjoyed by expert witnesses. As a consequence, where an expert acts carelessly in the litigation such that the client suffers loss, the client will now be able to obtain redress for breach of duty of care. Experts, just like the solicitors and barristers involved in the case, can now be sued and the lawyers can no longer hide behind the protection of expert immunity either.
The facts in brief
C was knocked down while on his motorcycle and he brought personal injury proceedings against the insurer who accepted liability but not quantum. C instructed D, a consultant psychologist who (allegedly negligently) signed a draft joint statement (prepared by the insurer’s clinical expert) asserting that D agreed that C had exaggerated his injuries and been deceptive and deceitful. As a result, C was forced to settle his claim for considerably less than he would have achieved had D not signed the joint statement in the said terms.
The Supreme Court’s decision
By a majority of five Justices (two dissenting), the Supreme Court had little sympathy with D being able to rely upon a rule of law that denied a wronged client a proper remedy. D argued that removing the immunity would operate in two ways. First it would make expert witnesses more reluctant to provide their services. Secondly, the reluctance that an expert witness would have to give evidence that was contrary to his client’s interest if there was a risk that this might lead his client to sue him.
Neither argument was seen as a good enough reason to keep the immunity and the previous reasoning justifying expert immunity was no longer viable. There is no reason why experts should be any different to other professionals who also owe their clients a duty of care but enjoy no immunity and consequently have to insure against the risk of being sued. As such, the appeal was allowed.
Construction experts and their firms may need to revisit their professional indemnity policies to ensure that adequate cover is provided for litigation activities past, present and future. Indeed, Lord Hope, in his dissenting judgment, made the point that removing the immunity will have to operate retrospectively for C’s claim to be given effect. As such, experts may need to be protected for activities carried out within the limitation period. Furthermore, standard terms and conditions limiting or excluding liability for negligence may need to be revisited to make sure that they provide the protection intended.
While clients are unlikely to accept exclusions, caps on liability backed by insurance may be acceptable. Finally, experts (just like the lawyers) may tend to avoid giving clients overly-optimistic advice and be much more cautious in their views “just in case”. For the conscientious expert, this decision should not cause too much concern because an expert who gives an unbiased and measured opinion that is within a reasonable range of opinions is likely to discharge his duty to both his client and the court.