Professional negligence of the expert witness?
The Defendant (a Consultant Clinical Psychologist who had acted as a forensic expert in Psychology within a personal injury action on behalf of the Claimant) sought to strike out a claim issued against her for professional negligence in the preparation of her expert’s report in the original personal injury action.
The real problem with the expert evidence in the original personal injury action was that the expert had changed her mind within the joint statement to the detriment of the Claimant’s claim. Therein, she had apparently changed her view from the Claimant suffering from post-traumatic stress disorder to one where she found the Claimant to have been very deceptive and deceitful in reporting. Apparently, the solicitors acting for the Claimant in the original personal injury action had sought to persuade the District Judge that they should be permitted to instruct an alternative expert. That application had failed and therefore the proceedings had been settled for a far lesser sum than originally anticipated.
No defence had been entered on the merits in the professional negligence action. Accordingly, the strike out application was considered on the basis that the Claimant’s statement of facts must be assumed to be true. The Defendant’s proposed response to any claim against her was a plea of witness immunity pursuant to the decision of the Court of Appeal in Stanton v Callaghan  QB 75. Essentially, the Claimant in the strike out application recognised that he was seeking to sue an expert retained by him to both advise and appear as a witness in litigation as in the Stanton case. Further, as in Stanton, the negligence was alleged to be in respect of the revised position communicated by the Defendant in the joint report. Basically, if Stanton remained good law, it was clear that there would be no defence to the application to strike out.
1. Was the case of Stanton v Callaghan still good law?
2. If it was, and therefore the strike out application succeeded, should a certificate for a leap frog appeal to the Supreme Court be granted?
Overall, the decision in Stanton was found to remain an accurate statement of the law as it presently stood and was therefore binding on the High Court.
The Claimant had argued that human rights considerations may question some of the policy assumptions behind the decision in Stanton and therefore it was no longer authoritative. It was argued that blanket immunities such as the sort enjoyed by the expert witness are now vulnerable to attack on human rights grounds applying the approach in Osman v The United Kingdom and the subsequent decisions of the House of Lords. Overall, it was argued that the question was whether a general immunity was strictly necessary for professional experts to promote their duty of candour to the Court, when others sanctions would promote the same aim without leaving a party without remedy for breach of the recognised standards of care?
Overall, Mr Justice Blake concluded that the fact that human rights considerations may question some policy assumptions behind a previous decision of a Superior Court, that was no basis for him to conclude that the decision was no longer authoritative. There was no judgment of the European Court of Human Rights on the issue and a direct challenge would be required to consider the decision in Stanton anything other than binding.
The Judge’s attention was drawn to Kay and Others v Lambeth London Borough Council  UKHL 10 where the duty of Judges to review convention arguments addressed to them was considered. Overall, if a Judge considers that a binding precedent is or is possibly inconsistent with Strasbourg Authority they should express their views and give leave to appeal. Further, a leap frog appeal may be appropriate. Overall, this was seen as an appropriate way for the Trial Judge to discharge his duty under the Human Rights legislation whilst following the binding authority.
Just because developments within the law had caused questions to be raised about the public policy basis of the decision in Stanton, it did not deprive Stanton of its binding effect.
For all of those reasons the decision was considered binding and the Claimant’s application was struck out.
However, the Judge then went on to consider whether there was need for Appellate review of Stanton. Overall, he considered that there was. The Defendant consented to there being the grant of a leap frog appeal to the Supreme Court (as is necessary for such a leap frog to be awarded). Accordingly, the matter will come for review before the Supreme Court within the fullness of time. It is of course open to the Supreme Court as to whether they give permission for such an appeal to be heard.
Overall, at present, the law is as it always has been, namely there is an immunity for experts in the preparation and presentation of expert witness evidence in a case. However, there is currently an avenue open for the decision in Stanton to be reviewed by the Supreme Court and further guidance can be expected shortly.