The appointment of an expert is something that has been topical during 2011 when the Supreme Court in the case of Jones v Kaney, by a five to two majority, abolished expert witnesses’ immunity from suit for breach of duty. Immunity had previously been eroded in cases before professional tribunals such as the General Medical Council and in wasted costs proceedings but absolute immunity in defamation cases and the immunity of factual witnesses remained in place.
Experts need to be made aware of the potential liability to their client for breach of duty in legal proceedings which includes not only their involvement in but also the preparation for. Whilst it is important to make an expert aware of this potential liability as long as an expert gives an independent and unbiased opinion then he will have discharged his duties to both the court and the client.
Another development in the sphere of expert witnesses in 2011 related to the possibility that in litigation a party may be required to discharge an expert’s report upon which they no longer intend to rely, in order to get leave to use a different expert, even if the original report was obtained pre-action. It is important therefore to assess the expert’s suitability and qualifications thoroughly before formally making an appointment and it may be appropriate to appoint the expert as an expert adviser rather than a court expert at early stages to avoid potentially damaging reports having to be disclosed.
In Edwards-Tubb v JD Wetherspoon plc  EWCA Civ 136 the Court of Appeal considered whether a party should be ordered to disclose an expert report obtained before proceedings were commenced as a condition of being granted leave to use a different expert in the proceedings. There was existing authority for this to be a condition where the original report had been obtained after proceedings had been issued. The Court of Appeal saw no reason to distinguish the position pre- and post-issue of proceedings, not least as the requirement is aimed at discouraging “expert shopping”.
For more information contact: Qaiser Khanzada on Qaiser@barkergillette.com