I have met many expert witnesses over the years. The majority have understood that their role is to give an accurate and honest opinion and that their absolute duty is to assist the tribunal in its function regardless of who is paying the bill. Unfortunately I have also met my fair share of hired guns over the same period. What do I mean by a “hired gun”? What I am talking about is the sort of expert who confuses his or her role with that of an advocate winding up his or her client to pursue a case based on improper advice. The resulting mess is not good for anybody. Inevitably, opposing positions become difficult to reconcile, the dispute becomes protracted and both sides end up incurring additional and unnecessary expense.
Until now a client that inadvertently appointed a hired gun could do nothing even if he established that he had been negligently advised. In reality, experts were immune from the effects of giving improper advice to their clients.
But things have now changed. The long awaited judgment in the case of Jones -v- Kaney reverses this position and for many people the change is very welcome. Experts as well as Barristers no longer have immunity if they are found to be in breach of their duty. This is not really a surprise to the expert community. So, if you are an expert, should you be bothered? Furthermore, should solicitors be concerned about this development? The answer must be a resounding NO.
Good experts have long since understood the risks and rewards of providing expert opinion to tribunals and the sensible ones do not accept appointments lightly. Any professional person thinking of accepting an instruction to act as an expert must take very seriously the role of expert witness.
A good expert will provide a professional and true opinion that he or she will be happy to be examined on in the witness box. Whilst the opinion may not be the answer the instructing solicitor or client would ideally like, it should focus the mind of the client as to the likelihood of their success in the claim and often avoid further wasted costs.
If he or she does not, and the resulting advice is found to be defective, there is now the very real possibility that the expert may find himself in court facing a claim for damages from a very disgruntled client.
For those professionals who have always understood the role of an expert witness, there is nothing to fear from this development. As for hired guns in the expert community, the time has come to hang up your spurs!