Expert witness: Stanton and Another v Callaghan and Others (8 July 1998) Court of Appeal

Mr and Mrs Stanton owned a house affected by subsidence. With the agreement of their insurers, partial underpinning of the house was carried out. Further subsidence, however, occurred. Mr and Mrs Stanton engaged Callaghan and others to provide expert advice. Callaghan initially advised Mr and Mrs Stanton that partial underpinning had been an inappropriate solution and that total underpinning would be required at a cost later estimated at £64,812. Accordingly, Mr and Mrs Stanton claimed against the insurers for the cost of the total underpinning.

The claim was rejected and Mr and Mrs Stanton commenced proceedings against the insurers. Callaghan was to give evidence at the hearing regarding the remedial work which was required to be undertaken. Shortly before the hearing, Callaghan met with the insurers' expert witness and agreed a joint statement in accordance with Order 38, rule 38 of the Rules of the Supreme Court as to the remedial work to be done to the house. This provided an alternative and cheaper remedy to total underpinning with the required works estimated at a cost of £21,130. Callaghan then submitted his final report to Mr and Mrs Stanton to the effect of the joint statement, who, as a result accepted the insurers' payment into court of £16,000 in final settlement of the claim. The remedial works were carried out but only enabled the house to be sold at what was claimed to be half its market value if it had been returned to full stability. Mr and Mrs Stanton brought proceedings against Callaghan in negligence and for breach of retainer alleging that the solution which had been proposed by Callaghan in his report and agreed with the insurers' expert was not feasible and would not have been effective in restoring the property to total stability and full market value. Callaghan applied to have the action struck out as disclosing no reasonable cause of action. The judge in the High Court held that Callaghan would be immune from suit for alleged negligence while acting as an expert witness but could be liable for breach of his retainer, acting inconsistently with or going beyond his instructions as an expert advisor to Mr and Mrs Stanton. Callaghan then appealed. The Court of Appeal held that the terms of the retainer provided for Callaghan to meet the insurers' expert with a view to agreeing as much as possible and identifying those areas still in dispute. The agreed joint statement addressed those issues on which expert evidence was to be given at trial. Therefore, Callaghan was complying with his instructions. It was not breach of retainer to agree a solution which takes account of the fact that the insurers would not pay for total underpinning.

In addition, the Court of Appeal held that the judge in the High Court had been correct to hold that Callaghan and others were immune from suit in respect of the alleged negligence contained in the reports. Immunity from suit was recognised in relation to certain things done in the course of preparing or taking part in a trial on the basis of a supervening public interest overriding the need to provide a remedy in the specific case. Order 38 makes provision for a joint statement from the expert witnesses if they are in agreement before the trial. The public interest in facilitating full and frank discussion between experts before trial required that each should be free to make proper concessions without fear that their advice could be seen as evidence of negligence. Therefore immunity from suit was justified in this area and this was not lost by Callaghan subsequently not giving evidence at trial. (New Law Digest, 8 July 1998)