Experts’ Immunity Removed

Background
A claim by Jonathan Guy Anthony Phillips and others against Robin James Symes concerned the administration of an estate and the calling in of its assets.

Mr Symes lived with, and built an antiquities business with, Mr Christo Michailidis who died in an accident abroad in 1999. Several issues arose when dealing with the administration of the estate and in particular Mr Michailidis’ administrators argued that the business was a partnership whereas Mr Symes contended that it was not.

In 2003 an issue arose concerning Mr Symes’ capacity and this came before the Court the following year.

Mr Symes’ representatives instructed a Consultant Psychiatrist, Dr Zamar, to examine him and prepare a report. In his report, Dr Zamar concluded that Mr Symes lacked mental capacity and had done so since suffering a stroke in 1980. Clearly, if this evidence was accepted by the Court it would have had major implications for the estate of Mr Michailidis and it would also have affected anyone else who had carried on business with Mr Symes in the 19 years between his alleged loss of capacity and his death.

The High Court rejected Dr Zamar’s evidence and found that Mr Symes did have capacity and accordingly, the Court awarded costs to the administrators. The case was complicated however as the administrators had little prospect of recovering their costs from Mr Symes, who was a bankrupt. Given that the costs of the capacity issue alone were in the region of £400,000, the administrators took the unusual step of applying to join the expert, Dr Zamar, as a Defendant in the proceedings for costs purposes.

In a landmark Judgment in the Chancery Division, Mr Justice Peter Smith gave the Claimant permission to join Dr Zamar as a Defendant to the proceedings for costs purposes.

High Court Decision
The Court held that Dr Zamar had a duty to the Court as expounded in a case, well known to all students of law, namely National Justice Compania Naviera SA v Prudential Assurance Co Limited (“The Ikarian Reefer”) 1993 2 Lloyd’s Reports 68. That duty was amplified by Part 35 of the Civil Procedure Rules and its accompanying Practice Direction. Taking into account recent developments in civil litigation, in appropriate circumstances a third party costs order could be brought against somebody who was a witness and as a result of the manner in which he gave his evidence as a witness.

In reaching this decision, the Court applied Symphony Group plc v Hodgson 1994 QB 179 in which the Court of Appeal considered the power and circumstances under which it might be appropriate to order costs against a non-party.

The Court considered the need for experts to be warned of the potential consequences of their giving evidence. They held that the only warning required was that set out in the 1998 rules and in the declaration signed by the expert. That made it clear that the expert could be the subject of contempt proceedings. Bearing in mind the severity of those sanctions one expected an expert to be alive to potentially adverse consequences in the event that he breached his duty to the Court.

Lastly, the Court held that the possibility that an expert could be ordered to pay costs would not operate as a deterrent to an expert giving evidence. In reaching this decision the Court considered that until recent times there were two immunities in respect of trial, advocates immunity and witness immunity. Advocates immunity from suit arising from things done and said in Court was removed by the case of Arthur J S Hall & Co v Simons (2002) 1 AC 615 H.L.

Comment
This decision means that if an expert derogates from his duty in a reckless fashion he could be financially liable for the consequences.

A high level of proof if likely to be required to establish that an expert has breached his duties to the Court, accordingly, applications such as this are likely to remain relatively rare.

Experts would be wise to make themselves familiar with “The Ikarian Reefer” referred to above and in particular Mr Justice Cresswell’s summary of the duties of an expert witness contained therein. The case is extremely instructive and ought to be read together with Civil Procedure Rules Part 35.

If experts feel they require further information to complete their reports they should request this from their instructing solicitors. If the information is not provided this must be explained in their report which they should make clear is accordingly only provisional. If all else fails, an expert can always apply to the Court for directions or decide not to take the case on at all.

Published 22/03/2005.