Law and Rights
Expert witnesses appear in many cases. Their evidence may be decisive and, occasionally, it may devastate someone's life. The evidence may turn out to be mistaken.
An "expert" witness has to be accepted as such by the court and, once accepted, may give an OPINION on a matter provided that it is within his area of expertise. An expert enjoys immunity from being sued in negligence. This rule - established by the Court of Appeal (Civil Division) in Stanton v Callaghan [2000] QB 75 - is based on "public policy". In the civil case of Jones v Kaney [2010] EWHC 61 (QB) this rule has been questioned by Mr Justice Blake even though, as a matter of precedent, it bound him. It remains to be seen whether the matter will go to the Supreme Court and, if it does, whether they will uphold the rule or sweep it to one side. The Supreme Court might decline to hear an appeal.
In 2002, the House of Lords removed the former immunity from action enjoyed by barristers in the conduct of litigation - Arthur J S Hall v Simons [2002] 1 AC 615 but the considerations for advocates are not necessarily the same as those for witnesses. If the Supreme Court does sweep the protection away, will the door be opened to a considerable number of claims? That is a distinct possibility. Is there is a case for prospective overruling to prevent such claims? The notion of prospective overruling was raised by the House of Lords in National Westminster Bank v Spectrum Plus [2005] UKHL 41. Of course, removing the immunity might reduce the number of persons willing to provide expert evidence. Also, perhaps it is really in the interests of justice that a witness can give truthful evidence without fear of subsequent legal action. It is also unclear how a change might affect criminal cases. In a number of instances, there have been miscarriages of justice based on what was, at the time, convincing evidence given by a confident expert witness - e.g. Angela Cannings case and the Sally Clark case.
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In the 13th edition of Salmond on Torts (1961) - (at page 428) - it was said: " When ... a court holds that the defendant was under a duty of care, the court is stating as a conclusion of law what is really a conclusion of policy as to responsibility...
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On Wednesday 28th January, the Supreme Court handed down judgment in Michael and others v Chief Constable of South Wales Police and another [2015] UKSC 2 (Judgments). The facts of the matter arose over 5 years ago in the early hours of 5th August...
- A Family Inheritance Wasted On Litigation
The recent case of Hawes v Burgess [2013] EWCA Civ 74 illustrates the high financial cost of litigation relating to wills. The Court of Appeal upheld the trial judge's finding that the deceased's last will, in which the testatrix cut out...
- Achieving Best Evidence In Criminal Proceedings
Preston Combined Court CentreA new version of "Achieving Best Evidence in Criminal Proceedings" has been issued by the Ministry of Justice. This guidance is very important in relation to interviewing certain victims and witnesses and it contains...
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Law and Rights
Expert witnesses: May we sue them?
An "expert" witness has to be accepted as such by the court and, once accepted, may give an OPINION on a matter provided that it is within his area of expertise. An expert enjoys immunity from being sued in negligence. This rule - established by the Court of Appeal (Civil Division) in Stanton v Callaghan [2000] QB 75 - is based on "public policy". In the civil case of Jones v Kaney [2010] EWHC 61 (QB) this rule has been questioned by Mr Justice Blake even though, as a matter of precedent, it bound him. It remains to be seen whether the matter will go to the Supreme Court and, if it does, whether they will uphold the rule or sweep it to one side. The Supreme Court might decline to hear an appeal.
In 2002, the House of Lords removed the former immunity from action enjoyed by barristers in the conduct of litigation - Arthur J S Hall v Simons [2002] 1 AC 615 but the considerations for advocates are not necessarily the same as those for witnesses. If the Supreme Court does sweep the protection away, will the door be opened to a considerable number of claims? That is a distinct possibility. Is there is a case for prospective overruling to prevent such claims? The notion of prospective overruling was raised by the House of Lords in National Westminster Bank v Spectrum Plus [2005] UKHL 41. Of course, removing the immunity might reduce the number of persons willing to provide expert evidence. Also, perhaps it is really in the interests of justice that a witness can give truthful evidence without fear of subsequent legal action. It is also unclear how a change might affect criminal cases. In a number of instances, there have been miscarriages of justice based on what was, at the time, convincing evidence given by a confident expert witness - e.g. Angela Cannings case and the Sally Clark case.
- The Tort Of Negligence ~ A Few Thoughts On The Elusive Duty Of Care
In the 13th edition of Salmond on Torts (1961) - (at page 428) - it was said: " When ... a court holds that the defendant was under a duty of care, the court is stating as a conclusion of law what is really a conclusion of policy as to responsibility...
- A Brief Look At Michael V Chief Constable Of South Wales Police And The Ipcc Report
On Wednesday 28th January, the Supreme Court handed down judgment in Michael and others v Chief Constable of South Wales Police and another [2015] UKSC 2 (Judgments). The facts of the matter arose over 5 years ago in the early hours of 5th August...
- A Family Inheritance Wasted On Litigation
The recent case of Hawes v Burgess [2013] EWCA Civ 74 illustrates the high financial cost of litigation relating to wills. The Court of Appeal upheld the trial judge's finding that the deceased's last will, in which the testatrix cut out...
- Achieving Best Evidence In Criminal Proceedings
Preston Combined Court CentreA new version of "Achieving Best Evidence in Criminal Proceedings" has been issued by the Ministry of Justice. This guidance is very important in relation to interviewing certain victims and witnesses and it contains...
- The Evidence Of Children And Young Persons
"Children are the living messages we send to a time we will not see" - John W. Whitehead - "The Stealing of America" - 1983. The question of whether children and young persons are permitted to give evidence in court has a long and convoluted history. ...