The implications of acting as an expert witness changed overnight when the Supreme Court abolished expert witness immunity in Jones -v- Kaney. Anthony Willis examines one of the difficulties that experts may now have in defending a claim: refuting causation. Do expert witnesses face an unfair fight and what can they do to protect themselves?
When immunity was abolished, some commentators argued that this would impact on an expert’s objectivity and duty to the court. Others said that it was important for experts to be liable if they breached professionals’ normal standard of care. Some argued both points and that the decision should have been taken by Parliament after wider, considered thought. The eventual removal of expert immunity was probably inevitable, especially following the removal of barrister immunity in Hall -v- Simons in 2000. The problem for experts is that the case in which it happened involved an extreme set of facts in which liability and causation of loss were clear; the expert had signed a joint statement without properly considering the content. In the context of a more borderline set of facts, the court’s isolated decision in Jones -v- Kaney,has thrown up some potentially difficult questions.
Imagine this different set of facts – the expert finishes giving evidence at trial in a highly technical dispute. The judge relies heavily on the expert evidence, but prefers the other side’s expert. The client is dissatisfied and says that it only proceeded to trial, rather than settling the case, because of the supportive expert evidence. The client alleges that it has lost hundreds of thousands of pounds and brings a claim against the expert to recover this. How does the expert defend the claim? How might he show that something else caused the client’s loss? Perhaps the advice from the solicitor, or because, regardless of the solicitor’s advice, the client wanted his ‘day in court’?
The privilege trap
To demonstrate what else may have contributed to the decision to go to trial, the expert would need to see the solicitor’s advice and the client’s instructions. However, communications passing between a client and solicitor are privileged. The expert will not automatically be entitled to see these documents, even when being sued by the client - unless the privilege is waived.
The expert could ask the claimant for copies of the advice and instructions as part of disclosure. If these are beneficial to the claimant’s case, it is possible that privilege would be waived by the claimant and the documents provided. At least the expert can then assess the merits of the case and either reach an appropriate settlement, or obtain costs protection, with a well-pitched settlement offer.
Conversely, if the claimant refuses to waive privilege and to provide the documents, then the expert might assume that this is because the documents reveal that the claimant did not rely, solely or at all, on the expert evidence. However, to prove this, the expert would need to actually have the documents. The only option would be to ask the court for a declaration of implied waiver of privilege and an order for specific disclosure. Would the court grant this?
Implied waiver of privilege
In Lillicrap -v- Nalder & Son, the court held that a party suing its former solicitor impliedly waives privilege. Further, inParagon Finance Plc -v- Freshfields, the court held that, by bringing the confidential relationship with its former solicitor before the court, the claimant had impliedly waived privilege.
However, aside from the former solicitor, courts have otherwise proven reluctant to ‘pierce the privilege veil’. InNederlandse Reassurantie Groep Holding NV -v- Bacon & Woodrow (No.1), where an accountant was being sued for tax advice on a corporate transaction, the court rejected an argument that suing non-legal advisors could impliedly waive privilege, despite acknowledging that the privileged documents requested were linked to causation. The accountant argued that the solicitor would also have provided advice on the issue, that this advice was relevant to causation, and that the confidential relationship was therefore before the court. The argument was rejected by the court on the basis that the claimant was not itself bringing the confidential relationship with the solicitor before the court simply by virtue of potential causation arguments in defence of the claim – privilege is paramount and must be protected.
No court has yet been asked whether privilege is impliedly waived in a claim against an expert and so the question remains open. In the scenario we have discussed here, the solicitor is not being sued and therefore the confidential relationship is not being brought before the court. Yet this leaves the expert in a very difficult position. It is arguable that the expert was a member of the ‘litigation team’ and that this relationship is before the court, but based on current authorities this argument may not be successful. The only choice that the expert has is to put the claimant to proof on causation. The difficulty with this defence is that, on the balance of probabilities, and without evidence demonstrating otherwise, the claimant will probably be able to demonstrate at least some reliance on the expert evidence. While a net contribution clause may help limit the expert’s liability, without the privileged documents it would be difficult for the expert to prove the other contributory factors and the expert may therefore be held solely liable for the claimant’s loss.
Given the potential unfairness of this situation, it must only be a matter of time before the courts will be asked to decide this point. From the expert’s perspective, a positive decision on this point is needed. While the policy behind privilege is that a client should feel able to be open with their solicitor without fear of recourse, this must be weighed against the need for the court to have all the evidence before it to determine the issue of liability and administer justice. A negative decision could leave experts facing an unfair fight and the ramifications of this could be far reaching. This may have an effect on the price and availability of insurance, cost of instructing an expert witness and, ultimately, the willingness of experts to accept instructions.
However, it is not all doom and gloom. There are protective steps that expert witnesses could take while a decision is awaited from the court. These include updating standard terms and conditions to incorporate an express waiver of privilege clause should the client bring a claim against the expert. Care would have to be given to ensure that this is enforceable, but this, together with a net contribution clause, may help the expert to limit its liability in future claims. Experts should also remember other good record-keeping practices throughout their instruction so that, in the event that a claim is made, they have their own file clearly documenting their involvement, advice and thought processes throughout the matter.