Surveyors' immunity as expert witnesses

Surveyors' immunity as expert witnesses

Surveyors' immunity as expert witnesses

Paul Murrells

The responsibilities of surveyors acting as expert witnesses have been considered in a previous article[1]. Provided these have been complied with then, as a general rule, surveyors will be granted immunity from professional negligence claims. This is based on grounds of public policy, so as to encourage witnesses to come forward and give their evidence without fear of being sued. Without such immunity, there might be an understandable reluctance to give such evidence.

For a long time, such immunity has been accepted regarding evidence given by expert witnesses in criminal proceedings and child abuse cases. However, is such immunity the same where the witness is a professional person who has agreed, for reward, to give evidence in support of his opinion on matters within his own expertise?

Recent judgment

A recent Court of Appeal judgment has given very important guidance on a point of law not previously considered by the courts. As such, the judgment needs careful consideration by everyone who might be considering acceptance of instructions to act as an expert in potential court proceedings, whatever their professional background. Can claims for negligence and breach of contract be brought by a party to pending proceedings against an expert witness whose evidence he proposes to call in those proceedings? This is for preparing a joint statement with the other side's expert as to which parts of their intended evidence at trial are agreed and which are at issue. The preparation of such a joint statement is recognised by the Rules of the High Court[2].

Stanton and Stanton v. Callaghan and Others[3]

Mr and Mrs Stanton owned Espica Villa, Marsh Road, Shabbington, Aylesbury. In 1981, they discovered that the property had suffered subsidence damage. Partial underpinning was carried out, but this failed to stabilise the property. Further subsidence occurred. The Stantons appointed the defendants who, in their report, advised that partial underpinning had been an inappropriate solution. Total underpinning was required now. Based on this, the Stantons claimed on their property insurance, but this was rejected. Proceedings were commenced against the Stantons' insurers with Mr Callaghan of the defendants appointed as their expert witness.

Approximately four weeks before the trial of the Stantons' proceedings was due to commence, a meeting took place between Mr Callaghan and the insurers' expert witness in an endeavour to narrow the issues between the parties. Departing from his previous advice, Mr Callaghan agreed that, at less cost, partial underpinning could be restructured, rather than total underpinning. Having seen the joint statement of the respective expert witnesses, the Stantons' insurers increased their payment into court to £16,000. Based, no doubt, on legal advice, the Stantons took the view that they had no choice but to accept the monies in court. Accordingly, no trial took place.

After payment of the unrecovered costs element of their proceedings against insurers, the Stantons were left with less than £5,000, which went towards repair of the property. This was sold later, for £50,000, which was said, in effect, to be its site value. It was alleged that, had the property been repaired by total underpinning, it would have been worth £105,000.

Then, the Stantons commenced proceedings against the defendants alleging that the remedial work to the property proposed by Mr Callaghan of the defendants in his final report and the joint statement of expert witnesses was not feasible. It would not have the effect of returning the property to stability and its full market value. The defendants applied unsuccessfully to strike out the claim and it was on this basis that the matter came before the Court of Appeal. The trial judge had taken the view that if, at a meeting of experts, an expert intended to enter into an agreement which would amount to a substantial concession from the case previously pleaded by his clients, it was arguable that such expert ought to tell his clients of that intention before entering into an agreement.

Court of appeal judgment

In the context of this case, negligence connoted something outside the range of reasonable professional judgment. The Stantons would have to overcome formidable hurdles if their action proceeded. However, in considering the defendants' application to throw out the claim without a full trial, the court had to assume that the Stantons would succeed in overcoming such hurdles.

Previous court decisions

As referred to in the introduction to this article, there have been various previous court decisions regarding immunity of witnesses from proceedings, mainly relating to criminal cases and those involving child abuse. However, so far as this particular case was concerned, the most significant decisions related to lawyers' immunity. Other professionals might have comments to make about this!

In a solicitor case, Palmer v. Durnford Ford[4], the judge said the following:

"...I do not think that liability for failure to give careful advice to his client should inhibit an expert from giving truthful and fair evidence in court."

Likewise, in Rondel v. Worsley[5] the House of Lords had to consider a barrister's immunity in the conduct of a court hearing involving the criminal prosecution of client. In ruling that such immunity existed, the House said this was for reasons of public policy and not because there was no contract between barrister and client.

This arises out of a need to avoid a multiplicity of trials.

Each case would depend on its own facts with the court concerned to protect the expert from liability for the evidence which he gave in court and the work principally and proximately leading thereto. Applying this test to the facts of the Stanton case, their negligence claim should be struck out as it contained no basis in law for a claim against the defendants.

Expert reports

The Court of Appeal took the view that three propositions were supported by court authority binding on it:

1. 1.

   an expert witness who gives evidence at a trial is immune from proceedings in respect of anything which he says in court; that immunity would extend to the contents of the report which he adopts as, or incorporates in, his evidence;

2. 2.

   where an expert witness gives evidence at a trial, the immunity he would enjoy in respect of that evidence is not to be circumvented by proceedings based on the report itself; and

3. 3.

   the immunity does not extend to protect an expert who has been retained to advise as to the merits of a party's claim in litigation from proceedings by the party by whom he had been retained in respect of that advice, notwithstanding that it was in contemplation at the time when the advice was given that the expert would be a witness at the trial if that litigation were to proceed.

What had not been decided by any previous decision binding on the court, was whether an expert was immune from proceedings by the party who had retained him in respect of the contents of a report which he prepared for the purpose of exchange prior to trial, perhaps in compliance with a court direction. This was in circumstances where he did not give evidence at the trial, either because the trial did not take place, or because he was not called as a witness.

Reference was then made to another House of Lords judgment involving lawyers' immunity, Saif Ali v. Sydney Mitchell & Co.[6] where, at page 222B, Lord Diplock said the following:

"It has always been the policy of the law to ensure that trials are conducted without avoidable strains and tensions of alarm and fear."

The expert witness industry

In striking out the Stantons' claim, the Court of Appeal appreciated that its judgment would have far reaching implications to many professions. Witnesses who claimed to be, and were treated as, experts came from many disciplines and appeared in ever widening areas of litigation. They could range (alphabetically) from accident reconstruction experts, accountants, architects, through to veterinary surgeons. With the ever increasing claims against professionals, the range of expertise had increased and with it their numbers. In his far reaching review of the civil justice system, Lord Woolf commented:

"A large litigation support industry, generating a multi-million pound fee income, has grown up among professions[7]."

Excluding or limiting liability

Under current law, those professionals operating in partnership or as sole principles, have unlimited liability. Taking this into consideration, together with the rising tide of claims against professionals, this had made them even more alive to the need to find ways to limit their exposure. The Court of Appeal was well aware of increasingly complex clauses being incorporated into letters of engagement designed to exclude or limit liability. These clauses related to such matters as exclusions and caps on liability, limiting liability to appropriate proportions in relation to the responsibility of other professionals and indemnity/hold harmless clauses.

No expert can exclude liability for claims arising out of death or personal injury[8]. In cases of economic loss, a clause excluding or restricting liability is valid and enforceable to the extent that the professional can prove that it is reasonable[9]. In determining reasonableness, the courts may have regard to the relative strengths of the parties' bargaining positions.

The Ikarian Reefer rules

A question being put regularly to experts in cross examination of their evidence is whether they have complied with these rules. The role and place of an expert in the legal system was examined very carefully in the Ikarian Reefer case[10]. Although John Anstey has referred in detail to such case in a previous article in this journal[11], the seven duties of an expert witness, as summarised by Justice Cresswell, are worthy of repeat:

1. 1.

   Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.

2. 2.

   An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of an advocate.

3. 3.

   An expert witness should state the facts or assumptions on which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.

4. 4.

   An expert witness should make it clear when a particular question or issue falls outside his expertise.

5. 5.

   If an expert's opinion is not properly researched, because he considers that insufficient data are available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness, who has prepared a report, could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.

6. 6.

   If, after exchange of reports, an expert witness changes his view on a material matter having read the other side's report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the court.

7. 7.

   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.

Conclusion

Applying these principles to the facts of the Stanton case, there was no legal basis for a claim against the defendants who prepared reports and joint statements prior to, and in contemplation of, a trial which did not take place. It should be emphasised that every court being asked to make a ruling on immunity of any expert witness will have to decide this on the individual facts of that particular case. The extent of an expert witness's immunity is still in the course of development. This will continue on a case to case basis. Before any surveyors breathe a collective and large sigh of relief, they should bear in mind that immunity from proceedings does not extend to the role of "expert adviser", even though it might have been in contemplation of appointing such adviser as an expert witness. Careful drafting and agreement in terms of appointment becomes even more important.

Notes

1. 1.

   Structural Survey, Vol. 15 No. 3, 1997, p. 118.

2. 2.

   Rules of Supreme Court Order 38, Rule 38.

3. 3.

   [1998] EGCS115.

4. 4.

   [1992] 1QB483 at p. 488.

5. 5.

   [1969] 1AC191.

6. 6.

   [1980] AC198.

7. 7.

   Access to Justice, Chapter 13, Paragraph 2.

8. 8.

   Section 2(1) Unfair Contract Terms Act 1977.

9. 9.

   Section 2(2) and Section 11 Unfair Contract Terms Act 1977.

10. 10.

    [1993] 2 Lloyds Rep 68.

11. 11.

    Structural Survey, Vol. 14 No. 4, 1996, p. 58.