Expert witness negligence
Cases of expert witness negligence are becoming increasingly common since a change in the law in 2011.
Until 2011 expert witnesses could not be sued for professional negligence. This was because the courts had not wanted to stifle experts in saying what was needed to be said, for fear of a negligence claim being brought against them. However, the reasoning behind the decision to lift that immunity was simple: if the expert has not been negligent, then they should have no need to fear a claim.
In negligence claims against an expert witness it is usually the party instructing the expert who brings a claim. If the claimant loses a case a costs order is usually awarded against them. The claimant can, in turn, then bring a claim to recover those costs from the expert if the expert’s negligence caused the case to fail.
However, in certain situations the opponent can also make a claim against an incompetent expert. An example of this is the case of Mr Jamil. Mr Jamil was the expert for the claimant in a professional negligence case, but it became apparent very early on in the trial that he did not understand the basic tests to be applied to determine whether there had been a breach of duty in a negligence claim. He later said that he had suffered a mental block—the interrogation by counsel reminding him of an interrogation he had undergone in Iraq. The judge considered this excuse to be “palpable nonsense”, while the defendants said that his incompetence had started a lot earlier than the trial. The claimant’s solicitor and barrister had also been concerned about his ability previously, but Mr Jamil insisted that he was suitable.
In the judgment the court acknowledged that “there are plenty of not very good experts around” but in this instance, the conduct of Mr Jamil was exceptional and caused the defendant to incur unnecessary costs. As a result, the court ordered Mr Jamil to pay the defendant’s costs of over £88,000.
This decision highlights the fact that, in many instances, an expert’s involvement can be critical to a claim – a “make or break” – and the courts are prepared to accept this: firstly by lifting immunity; and now, making a wasted costs order against an expert. There is also a hint in the judgment that the court could have ordered a fine against an expert “to mark the court’s displeasure at his conduct.” Not in this instance though.
It is therefore important in any claim to:
- Ensure you get an expert where one is needed
- Make sure that s/he is suitably qualified
- Make sure they have sufficient experience
If there are any doubts about suitability or ability, even during a claim, the expert should be questioned. Whilst in this instance, the court ordered the expert pay the costs direct to the defendant, that is “highly unusual” and invariably, it is a costs order against the party who instructed the expert, who must then seek to recover them from the expert in question.
It goes without saying of course, that just because you lose a claim, it does not mean that the expert has been negligent. As the adage goes, put four lawyers (or experts) in a room and you will get five different opinions, all of which could be just as valid. No: to bring a claim for negligence, you have to show that no reasonably competent or qualified expert could have reasonably held that particular view.
If you have suffered substantial financial loss as a result of expert witness negligence, call us now on 0333 888 0403 or email details of your claim to us at [email protected]
