Advocates, experts and immunity from suit

Core immunity

In A and B v Chief Constable of Hampshire Constabulary, claimant “A” was an informer who alleged that his status as such was revealed by prosecuting counsel in court. “A” attempted to resist the striking out of his claim against the barrister by arguing that, following the abolition of expert witness immunity from suit for negligence in Jones v Kaney, it could no longer be said with confidence that core immunity (also called witness immunity) continues to protect barristers. This alarming suggestion, scotched firmly by the court, indicates that there is still scope for confusion when it comes to liability for conduct in court.

Core immunity attaches to anyone participating in court proceedings, including judges, court officials, witnesses, experts, parties, counsel and solicitors. They cannot be sued for libel, malicious falsehood or conspiring to give false evidence in respect of anything they say. They are not, however, immune from criminal prosecution for perjury, contempt of court or perverting the course of justice. In 2008, expert witness Terence Bates was given a suspended custodial sentence for representing that he had a degree, when he had never been to university.

Effect of abolition of immunity from suit for negligence

In Hall v Simons, the House of Lords held that the immunity of advocates to claims by their clients in respect of the negligent conduct of proceedings should no longer be maintained. This was held not to affect an expert’s immunity from suit for negligence which was thought to fall within core immunity and not to be equivalent to an advocate’s immunity. In Jones v Kaney, the Supreme Court concluded that this analysis had been wrong and that an expert witness has far more in common with an advocate than he does with a witness of fact.

The judge in A and B v Chief Constable of Hampshire Constabulary was clear that Jones v Kaney had absolutely no effect upon the continued existence of core immunity. Jones v Kaney is concerned solely with the liability of a “friendly” expert to the party who instructed him, just as Hall v Simons is concerned with the liability of an advocate to his own client. Both experts and advocates can be now sued in negligence by their clients but they retain core immunity. This means that, in the example given in Jones v Kaney, a client is still not able to sue his handwriting expert for slander where the expert changes his mind in the witness box and says that he thinks his client’s document was a forgery.

Claims against professionals by litigants in person

Next year’s proposed changes to legal aid, funding and costs are likely to lead to a significant rise in individuals conducting their own claims. This is of particular concern to professionals and their insurers. Where a litigant in person loses in one set of proceedings, he may look to bring a claim against the other side’s lawyers, who are required to offer assistance such as explaining court orders to him or drawing his attention to relevant authorities. Prosecuting counsel has been held to owe no duty of care to a defendant (Elguzouli-Daf v Commissioner of Police of the Metropolis) and this should apply also in civil proceedings. The same logic would apply to experts, particularly in the light of the comments made about the similarity between the roles of advocates and experts in Jones v Kaney. The present case provides a useful riposte to claims brought by litigants in person.

Claims for costs

Both advocates and experts are potentially vulnerable where costs are concerned but only in serious cases of default. Under s51(6) of the Senior Courts Act 1981, an application for wasted costs can be made against the other side’s legal representatives, as well as against your own. An order cannot be made against an expert under the wasted costs jurisdiction since it only applies to legal representatives or others conducting litigation on a party’s behalf. However, in Phillips v Symes (No 2), the court held that where an expert gives evidence in flagrant and reckless disregard of his duties to the court and thereby causes significant expense to be incurred, the court can order costs against him.