Evidence – Expert evidence – Immunity from suit – Expert preparing report and advising plaintiffs in connection with action – Plaintiffs abandoning action after expert’s evidence given – Plaintiffs’ claim for breach of duty against expert – Extent of expert’s immunity – Whether claim to be struck out Practice – Pleadings – Striking out – Abuse of process – Plaintiffs’ claim against expert for breach of duty – Allegation of negligent advice resulting in dismissal of previous action – Expert’s immunity from suit in respect of evidence and preliminary work connected therewith – Whether consent judgment final decision – Whether action against expert impugning final decision of competent court – Whether to be struck out: PALMER and Another v DURNFORD FORD (A FIRM) and Another [QUEEN’S BENCH DIVISION] (United Kingdom)

[1992] QB 483

PALMER and Another v DURNFORD FORD (A FIRM) and Another
[QUEEN’S BENCH DIVISION]
[1992] QB 483
HEARING-DATES: 24, 31 October 1991
31 October 1991

CATCHWORDS:
Evidence – Expert evidence – Immunity from suit – Expert preparing report and advising plaintiffs in connection with action – Plaintiffs abandoning action after expert’s evidence given – Plaintiffs’ claim for breach of duty against expert – Extent of expert’s immunity – Whether claim to be struck out Practice – Pleadings – Striking out – Abuse of process – Plaintiffs’ claim against expert for breach of duty – Allegation of negligent advice resulting in dismissal of previous action – Expert’s immunity from suit in respect of evidence and preliminary work connected therewith – Whether consent judgment final decision – Whether action against expert impugning final decision of competent court – Whether to be struck out

HEADNOTE:
The plaintiff haulage contractors instructed solicitors to act for them in connection with two breakdowns of their lorry tractor unit. The solicitors retained an engineer as an expert to prepare a report on the cause of the breakdowns. He advised that the plaintiffs had good claims against both the vendor and the repairer and proceedings were commenced accordingly. Following the exchange of experts’ reports prior to trial, however, the expert advised that he would have difficulty supporting the claim against the vendor although that against the repairer was still justified. At trial after the expert had given evidence the plaintiffs abandoned their claims and by consent judgment was entered for the vendor and the repairer.

The plaintiffs brought an action against the solicitors and the expert for breach of their contractual duties of care claiming, inter alia, that the expert was not sufficiently qualified to advise, that he should have advised from the outset that they had no claim against the vendor and that his persistence in an obviously wrong view about the repairer’s work had so damaged his credibility before trial that their partly meritorious claim against the repairer had had to be abandoned. The district judge granted the expert’s application to strike out the writ and statement of claim as against him on the ground that it disclosed no reasonable cause of action because he had at all times been acting in the course of preparing evidence for a claim or possible claim and was therefore immune from suit.

On the plaintiffs’ appeal and on the solicitors’ summons to strike out the statement of claim on the ground that it was an abuse of the process of the court because it sought to impugn the correctness of a final decision of a court of competent jurisdiction: –

Held, (1) allowing the appeal, that, since immunity from suit was based upon public policy and was conferred only where absolutely necessary, expert witnesses were prima facie immune only in so far as it was necessary to prevent them being inhibited from giving truthful and fair evidence in court; that the existence of liability for failure to give careful advice to a client should not normally so inhibit an expert witness and his immunity would extend only to evidence given in court and

work which was preliminary to his giving such evidence, so that production or approval of a report for the purposes of disclosure would beimmune but work done for the principal purpose of advising the client would not; and that, accordingly, since it was not plain and obvious that all the expert’s alleged breaches of duty were immune from suit, the statement of claim should not be struck out as disclosing no reasonable cause of action (post, pp. 488C-E, G-489C).

Saif Ali v. Sydney Mitchell & Co. [1980] A.C. 198, H.L.(E.) applied.

(2) That notwithstanding that the court had not pronounced on the merits of the plaintiffs’ claim against the repairer the consent judgment constituted a final decision on that claim; and that since the plaintiffs necessarily had to impugn that decision in order to establish their contention that part of their claim against the repairers had been good, that part of their statement of claim which supported that contention would be struck out as an abuse of the process of the court (post, pp. 489G-490B).

INTRODUCTION:
APPEAL from District Judge Catlin.

SUMMONS

By a writ issued from the Eastbourne District Registry on 28 March 1989 and statement of claim served on 20 June 1990 the plaintiffs, Peter Brian Palmer and Marion Patricia Palmer, claimed against the defendants, Durnford Ford, a firm of solicitors, and David J. Neve, a consultant engineer, damages for breaches of the duty of care owed to the plaintiffs by reason of the terms of their respective retainers as solicitors and expert

in connection with the prosecution of the plaintiffs’ unsuccessful claim against two companies which had respectively sold the plaintiffs a lorry tractor unit and purported to repair it when it had broken down.

By a summons dated 13 December 1990 the expert applied under R.S.C., Ord. 18, r. 19 and/or the inherent jurisdiction of the court for the plaintiffs’ claim against him to be struck out on the ground that the writ and statement of claim disclosed no reasonable cause of action against him and/or was an abuse of the process of the court since, as an expert witness, he was immune from suit. On 12 July 1991 District Judge Catlin granted the application and struck out the claim as against the expert. By a notice of appeal dated 16 July 1991 the plaintiffs appealed.

By a summons dated 18 March 1991 the solicitors applied under R.S.C., Ord. 18, r. 19(d) for the statement of claim to be struck out on the ground that the proceedings were an abuse of the process of the court in that they sought to attack a previous decision of a court of competent jurisdiction.

The appeal and the summons were heard together in chambers but judgment was given in open court.

The facts are stated in the judgment.

COUNSEL:
Nicholas Wood for the plaintiffs.

Laurence Marsh for the solicitors.

Charles Utley for the expert.

Cur. adv. vult.

31 October. The following judgment was handed down.

PANEL: Simon Tuckey Q.C. sitting as adeputy High Court judge

JUDGMENTBY-1: MR. SIMON TUCKEY Q.C

JUDGMENT-1:
MR. SIMON TUCKEY Q.C:

Introduction

This is an appeal by the plaintiffs from a decision of District Judge Catlin on 12 July 1991 who, on the application of the second defendant (“the expert”), struck out the writ and statement of claim on the ground that they disclosed no reasonable cause of action. There is also a summons by the first defendants (“the solicitors”) (which I have heard by consent pursuant to R.S.C., Ord. 32, r. 12 and upon which the expert also relies if the appeal is allowed) to strike out the statement of claim on the ground that it is an abuse of the process of court.

The appeal raises the question as to whether an expert can be sued in respect of any and if so what pre-trial work which he does for his client. The summons raises the question as to whether the pleading impugns the correctness of a previous decision of the court. Both questions are of some importance and the parties are agreed that it is appropriate to give this judgment in open court.

The statement of claim

The facts alleged in the statement of claim (which runs to 64 paragraphs) may be summarised as follows. The plaintiffs are haulage contractors. In

September 1978 they bought a new lorry tractor unit from Leyland Vehicles Ltd. It broke down in May 1981 and its engine was repaired by Arlington Motor Company Ltd. In July 1981 the plaintiff sought legal advice from the solicitors as to whether they could recover the cost of the repair and their consequential losses from Leyland. In January 1982, after assurances by him that he had the necessary qualifications and experience, the solicitors retained the expert, who is an engineer, to prepare a report on the cause of the breakdown of the engine. However, before he had reported the engine again broke down and the plaintiffs instructions to the solicitors and their instructions to the expert were extended to include this second breakdown. After inspecting the engine the expert produced a written report dated 12 February 1982 which advised that claims against Leyland and Arlington were justified. Based on this report and counsel’s advice the plaintiffs obtained a full legal aid certificate to take proceedings which were issued in January 1983. In due course the date for the trial was fixed for 7 October 1985. As the expert was to be called to give evidence in support of the plaintiffs’ claim his written report was disclosed to Leyland and Arlington. Leyland and Arlington then disclosed their own experts reports. Having seen these reports the expert advised that he would have difficulty supporting the claim against Leyland but that the claim against Arlington was still justified including a claim that when they had repaired the engine Arlington had unnecessarily replaced certain parts. On 8 October 1985, after the first plaintiff and the expert had given evidence, the plaintiffs abandoned their claims and by consent judgment was given for Leyland and Arlington with costs.

In these proceedings the plaintiffs allege that both the solicitors and the expert were in breach of their contractual duty of care. Against the solicitors it is alleged that they should not have instructed the expert, that they were responsible for the fact that the weakness of the plaintiffs case against Leyland was not appreciated until shortly before the trial and that they allowed this weakness to cloud and obscure a partly meritorious claim against Arlington. Against the expert it is alleged that he should not have accepted the retainer because he lacked the necessary qualifications and experience, that he should have advised from the outset that no claim against Leyland was justified and that he persisted in an obviously wrong view that Arlington had unnecessarily replaced parts. In this way it is alleged that he had so damaged his credibility before trial that the partly meritorious claim against Arlington had to be abandoned as well as the claim against Leyland. The plaintiffs claim damages for their losses which have resulted from pursuing the unmeritorious claim against Leyland and the loss of the opportunity to make good some part of their claim against Arlington.

The allegations made by the plaintiffs in the statement of claim are denied by both defendants but for present purposes I must assume that the facts alleged are true. I should only strike the pleading out if it is plain and obvious that this should be done.

The appeal

The expert’s successful application to the district judge was made on the ground that he was immune from suit because he was at all times acting in the course of preparing evidence for a claim or possible claim.

It is well settled that witnesses in either civil or criminal proceedings enjoy immunity from any form of civil action in respect of evidence given during those proceedings. The reason for this immunity is so that witnesses may give their evidence fearlessly and to avoid a multiplicity of actions in which the value or truth of their evidence would be tried over again: see Roy v. Prior [1971] A.C. 470, 480. This immunity has also been held to apply to the preparation of the evidence which is to be given in court. Thus in Marrinan v. Vibart [1963] 1 Q.B. 528, where the plaintiff sought to sue police officers who had prepared a report for the Director of Public Prosecutions and appeared as witnesses against him at his criminal trial, the court said, at p. 535, that the immunity “protects witnesses in their evidence before the court and in the preparation of the evidence which is to be so given.”

In Evans v. London Hospital Medical College (University of London)[1981] 1 W.L.R. 184 the plaintiff sued doctors and their employer for negligently investigating the circumstances in which the plaintiffs’ baby died which resulted in her being prosecuted for murder. Drake J. held that the immunity extended to cover the collection and analysis of material relevant to the offence or possible offence under investigation and was not confined to the preparation of the witnesses’ formal statement or proof of evidence. He said, at pp. 191-192:

“. . . I think it essential that the immunity given to a witness should also extend to cover statements he makes prior to the issue of a writ or commencement of a prosecution, provided that the statement is made for the purpose of a possible action or prosecution and at a time when a possible action or prosecution is being considered. In a large number of criminal cases the police have collected statements from witnesses before anyone is charged with an offence; indeed sometimes before it is known whether or not any criminal offence has been committed. If immunity did not extend to such statements it would mean that the immunity attaching to the giving of evidence in court or the formal statements made in preparation for the court hearing could easily be outflanked and rendered of little use. For the same reason I think that the immunity must extend also to the acts of the witness in collecting or considering material on which he may later be called to give evidence. If it does not so extend then a convicted person could, for example, sue the police officers for the allegedly negligent manner in which they had investigated the crime, by complaining that they had wrongly assessed the evidential value of certain matters or had failed to interview possible witnesses whose evidence was thought by the accused to be favourable to him.”

It is clear that Drake J. was directing his mind specifically to the position of witnesses in criminal or potential criminal proceedings although he does refer in the passage I have cited to statements made prior to the issue of a writ. He did however make it clear, at p. 190, that “It remains, of course, a question to be decided on the facts of each case . . . whether or not the negligent act or omission arose during the course of preparation of the evidence.”

In this case the expert was retained for reward by the plaintiffs to advise them as to whether from an engineering point of view a civil claim against Leyland and/or Arlington was justified. The previous cases have been concerned with witnesses who have given or were to give evidence, usually in criminal proceedings, “against” the plaintiffs. There is no English authority dealing with the position of an expert in circumstances such as those which exist in this case. Nor has this point been considered, as far as counsel have been able to discover, in any other common law jurisdiction.

Mr. Utley, counsel for the expert, submits that whenever an expert is retained with the possibility that he may have to give evidence in court, he is immune from suit for everything which he does. Thus, he accepts that the immunity would extend to a case where an expert negligently advised that there was no claim with the result that the plaintiff did not pursue it and suffered loss because, for example, by the time he realised he had a good claim it has become statute barred.

In considering whether the immunity is so far reaching, I approach the matter by noting first that experts are usually liable to their clients for advice given in breach of their contractual duty of care and secondly that the immunity is based upon public policy and should therefore only be conferred where it is absolutely necessary to do so. Thus, prima facie the immunity should only be given where to deny it would mean that expert witnesses would be inhibited from giving truthful and fair evidence in court. Generally I do not think that liability for failure to give careful advice to his client should inhibit an expert from giving truthful and fair evidence in court.

Accordingly I do not accept that the immunity can be as wide as that contended for. I can see no good reason why an expert should not be liable for the advice which he gives to his client as to the merits of the claim, particularly if proceedings have not been started, and a fortiori as to whether he is qualified to advise at all. Since both these allegations are made in this case I do not think that the decision to strike out the whole of the statement of claim can be justified. At least it is not plain and obvious that this should be done.

The problem is where to draw the line given that there is immunity for evidence given in court and it must extend to the preparation of such evidence to avoid the immunity being outflanked and rendered of little use. This problem was considered by the House of Lords in Saif Ali v. Sydney Mitchell & Co. [1980] A.C. 198 in the analogous but not identical situation of the advocate’s immunity from suit for what he does in court. In that case the House decided that the immunity extended to some pre-trial work but only where the particular work was so intimately connected with the conduct of the case in court that it could fairly be said to be a preliminary decision affecting the way that the case was to be conducted when it came to a hearing.

I think a similar approach could be adopted in the case of an expert. Thus, the immunity would only extend to what could fairly be said to be preliminary to his giving evidence in court judged perhaps by the principal purpose for which the work was done. So the production or approval of a report for the purposes of disclosure to the other side would be immune but work done for the principal purpose of advising the client would not.

Each case would depend upon its own facts with the court concerned to protect the expert from liability for the evidence which he gave in court and the work principally and proximately leading thereto. I do not think that difficulty in drawing the line precisely should result in a plaintiff in a case such as this being denied all remedy against his expert.

For the reasons which I have given I do not think that it was right to strike out those parts of the plaintiffs’ claim against the expert which allege that he should not have advised at all because he was not qualified to do so and that he was negligent in advising in his written report of 12 February 1982 that there was a good claim against Leyland. The history of the expert’s involvement after 12 February 1982 is complex. It is not possible to see from the statement of claim whether any and if so which of the allegations which are made fall the wrong side of the line so that the expert cannot be held liable in respect of them. Some or indeed all of them may do so, but this is not plain and obvious and so I cannot strike them out at this stage. The trial judge will be in a much better position to decide where the line should be drawn when he has heard all the evidence.

The summons

The question raised by the summons is related to that on the appeal because it concerns the principle that it is an abuse of the process of the court to bring an action which impugns the correctness of a final decision of a court of competent jurisdiction. As I have said the immunity of a witness is based partly on the need to ensure that the value or truth of the evidence upon which such a decision is based also cannot be impugned.

The principle has been considered in a number of recent cases including Hunter v. Chief Constable of the West Midlands Police [1982] A.C. 529, 541-542, Somasundaram v. M. Julius Melchoir & Co. [1988] 1 W.L.R. 1394 and Sinanan v. Innes Pitassi & Co. (unreported), 20 February 1991; Court of Appeal (Civil Division) Transcript No. 125 of 1991. Where it is shown that a plaintiff’s claim necessarily involves saying (either to establish liability or loss) that a previous decision of the court is wrong it will be struck out because

“it would . . . be undesirable in the interests of the fair and efficient administration of justice to tolerate a system under which, as a sort of by-product after the trial of an action and after any appeal or appeals, there were litigation upon litigation with the possibility of a recurring chain-like course of litigation:” per Lord Morris of Borth-y-Gest in Rondel v. Worsley [1969] 1 A.C. 191, 251.

Two questions arise in the instant case: (a) whether there has been a final decision of the court and (b) if so, whether and if so to what extent the plaintiffs’ claim seeks to impugn it.

As I have already said after a day or so of the trial the court made an order by consent that there be judgment for Leyland and Arlington against the plaintiffs on the claims which they had made. The plaintiffs contend that this was not a final decision of the court because the court did not itself pronounce on the merits of the claims. I disagree. I think that a final decision for this purpose is one which would give rise to a plea of res judicata. Such a decision is one which leaves nothing to be judicially

determined or ascertained thereafter in order to render it effective. Applying this test there can be no doubt that the decision of the court was a final one. Any attempt to resurrect the claims against Leyland or Arlington could be met by a successful plea of res judicata. It does not matter that the judgment was by consent: see Cohen v. Jonesco[1926] 1 K.B. 119, 125.

To what extent, if any, does the plaintiffs’ claim in these proceedings seek to impugn the earlier decision? The plaintiffs accept that there was no claim against Leyland. They do not therefore seek to impugn the earlier decision in this respect. However they do contend that part of their original claim against Arlington was good. In order to establish this they necessarily have to impugn the earlier decision. On the authorities to which I have referred this part of their claim must be struck out as an abuse of the process of court.

Conclusion

(1) The appeal is allowed. (2) On the summons, paragraphs 57(1), the last nine words of paragraph 60(11), paragraphs 60(12), 61(8), 61(9) and 62(3) of the statement of claim and paragraphs 3 and 6 of the schedule thereto be struck out.

DISPOSITION:
Appeal allowed with costs.

Application granted in part.

Leave to appeal.

Legal aid taxation of plaintiffs’ costs.

SOLICITORS:
Solicitors: Mayo & Perkins, Eastbourne; Blake Lapthorn, Fareham; Perring & Co., Hastings.

[Reported by Mrs. Gurinder Gosal, Barrister]

(c)2001 The Incorporated Council of Law Reporting for England & Wales