EWHC 61 (QB)
The claimant brought a personal injury claim following a road accident. An issue arose as to whether he had suffered post traumatic stress disorder (PTSD). The defendant clinical psychologist initially reported that the claimant had symptoms that suggested a diagnosis of PTSD whilst the expert for the defendants concluded that he was exaggerating his symptoms.
Following a telephone conversation with the defendant’s expert, the defendant psychologist signed a joint statement prepared by the defendant’s expert. The statement stated that she had found the claimant to be “very deceptive and deceitful in his reporting” and that the experts agreed that this was suggestive of conscious mechanisms and raised doubts over whether his subjective reporting was genuine. There were several problems with the joint statement, not least that she had not seen the other expert’s report at the time of the conversation, the statement didn’t reflect what she had agreed on the telephone and it was still her view that the claimant had suffered from PTSD which was now resolved.
As a result of the damaging nature of the joint statement and the inability of the claimant’s solicitors to persuade the judge that the defendant psychologist should no longer act as an expert in the proceedings, the claim was settled for considerably less than would have been the case if she had not signed the joint statement.
In the present professional negligence action, the defendant psychologist raised the defence of witness immunity, relying on the Court of Appeal decision in Stanton v Callaghan. The judge held that the decision was still good authority on the point and was binding on him, requiring him to strike out the claim. However, because he considered that a policy of blanket immunity for all witnesses may well prove to be too broad, he certified the case as one suitable for a leap-frog appeal to the Supreme Court under s12 Administration of Justice Act 1969.
Comment: in Hall v Simons the House of Lords held that the immunity of advocates in respect of the conduct of proceedings could no longer be justified on public interest grounds and should not be maintained. In that case, an expert’s immunity, recognised in Stanton v Callaghan, was thought to fall within the general witness immunity and not to be equivalent to an advocate’s immunity. Nonetheless, Stanton v Callaghan is clearly vulnerable to attack under Article 6 of the European Convention on Human Rights (ECHR) and its demise has been anticipated for several years – it was just a question of a suitable case coming along.
In Meadow v General Medical Council, Professor Sir Roy Meadow was removed from the register after he gave flawed statistical evidence in the trial of Sally Clark who, as a result, was wrongfully convicted of killing her two sons. The Court of Appeal decided, despite the fear expressed by the judge below that the GMC’s findings against Meadow had increased the reluctance of medical practitioners to involve themselves in court proceedings, that there should be no extension of the common law immunity from suit to disciplinary proceedings. Nor is an expert immune to criminal prosecution for perjury, contempt of court or perverting the course of justice.
Until Stanton v Callaghan is overruled, which seems inevitable at some stage even if this appeal does not proceed, an expert will be liable:
- where negligent advice is not preliminary to giving evidence in court;
- for advice given at an early stage of litigation eg on the merits of the claim, particularly if proceedings had not been started, or as to whether he was qualified to advise at all.
An expert will not be liable:
- for pre-trial work intimately connected with the case;
- for anything said in court even if he is dishonest;
- for the contents of his report adopted in evidence;
- for concessions made in an experts’ meeting or a joint statement.
It is not clear whether the existing immunity extends to a report prepared for trial where the trial does not take place or the expert is not called.
Even if the appeal goes ahead and succeeds, there may be a question over the scope and effect of the House of Lords’ decision. Hall v Simon was contentious in this respect since it was not entirely clear from the opinions whether the decision was intended to be retrospective or not. In Awoyomi v Radford (2007) it was held that, although the House of Lords decision in Hall v Simons was handed down in 2000, it was applied retroactively to the three appeals which were before their Lordships which related to conduct in 1991. The judge concluded therefore that the end of immunity occurred in 1991.
In the present case, the negligent acts in question occurred in November 2005. If the same approach is taken to retrospectivity here, this would mean that professional negligence claims against experts could relate back to that date – solicitors will need to keep an eye on the limitation period for bringing these claims if the House of Lords abolishes expert immunity from suit in this case.