Expert witnesses: Achilles heel

Forensic accountants who act as expert witnesses in civil or criminal
proceedings traditionally enjoy immunity from claims for breach of contract
and/or negligence in respect of the evidence that they give, or intend to give,
to the court by way of report or oral testimony. But several recent cases have
undermined this immunity.

As background, expert witnesses who give evidence in the field of accountancy
will belong to generic organisations such as the Academy of Experts and the
Institute of Expert Witnesses and to specialist groups such as the forensic
group of the ICAEW and the Network of Independent Forensic Accountants. While
such organisations have their own guidelines there is no single scheme of
accreditation or regulatory body governing the conduct of all expert witnesses.
Nor are there any prescribed sanctions in the courts’ rules for breach of the
duties and responsibilities governing the conduct of expert witnesses.

While expert accountants can find themselves the subject of certain claims
(including perjury, perverting the course of justice and contempt of court) in
contrast to other work they might carry out, they are not exposed to claims for
breach of contract and/or negligence in respect of the evidence that they give
to the court. The justification for such protection has been that all witnesses
should be able to present their evidence freely and without undue pressure or
fear of reprisal.

Yet the following recent developments have undermined expert witness
immunity.

The House of Lords in the case of Hall v Simons [2000] removed (with
retrospective effect) the immunity that was previously enjoyed by advocates, an
immunity that had been justified on grounds similar to those in support of the
immunity that is afforded to expert witnesses. Currently there are no signs that
the removal of such immunity has affected the ability of accounting expert
witnesses to present cases in court.

Until recently the courts had been reluctant to impose cost orders against
expert witnesses. It was held in the case of S v S [1995] that forensic
accountants made a very important contribution in the field of ancillary relief
(divorces, nullifications and judicial seperation) and that their willingness to
act as expert witnesses should not be undermined by the risk of adverse costs
orders. However, the court in Phillips & Others v Symes & Others [2004]
made an order against an expert witness and held that such orders should be made
where an expert witness was found to have acted recklessly or in flagrant
disregard of their duties to the court.

So far there is no evidence that this has deterred forensic accountants from
acting as expert witnesses. You should bear in mind that the imposition of
wasted costs orders against legal represntatives was a pre-cursor to the
abolition of advocates’ immunity.

The Court of Appeal confirmed in the case of General Medical Council v Meadow
[2006] that immunity does not extend to disciplinary action by an expert
witness’ professional body in respect of evidence that they give, a decision
that has been welcomed by the ICAEW’s forensic group. Judges can (in addition to
the parties to court proceedings) make a referral to an expert’s professional
body in circumstances where there has been professional misconduct and/or they
consider the expert to be unfit to practise.

Forensic accountants may, therefore, find themselves subject to sanction by,
for example, the disciplinary committee of the ICAEW or the Accountancy &
Actuarial Discipline Board.

There is scope for challenges to expert witness immunity on the basis that it
is inconsistent with article 6 of the European Convention on Human Rights in
that it deprives people of a right of access to the courts (an argument that was
raised in the Hall case).

Forensic accountants are unlikely to be inhibited from acting as expert
witnesses or from giving truthful and fair evidence in court if immunity were
removed, particularly taking into account the protection that is afforded to
them by professional indemnity insurance.

In contrast to witnesses of fact, the role of expert witnesses is to provide
opinion evidence based on their professional experience and expertise. But there
are persuasive arguments that experts should be held accountable if they stray
outside their remit and give evidence in breach of the obligations imposed upon
them.

Certainly in relation to civil proceedings, there are already indications
that, where professional expert witnesses offer their services in return for
remuneration, it may be difficult to justify the retention of immunity from
claims for breach of contract and/or negligence.

Carolyn Wilson is a solicitor in Kingsley Napley’s dispute resolution
department

Accountancy Age: Expert grilling

Accountancy’s expert witnesses do not always get an easy ride.

Kingston Smith’s Emile Woolf was criticised by the AIDB over erroneous verbal
claims, and not answering questions during the Mayflower tribunal, criticisms
strongly rejected by the firm.

‘We believe that the AIDB will need to remedy the defects in its procedures
that have been highlighted by the tribunal,’ a Kingston Smith spokesman said in
2007.

The panel had stated in its report that the best interests of the case were
not served by the AIDB calling Woolf as their ‘independent expert’ since he had
been closely involved in the investigation and advised the AIDB to separate
investigative and expert roles in future.

Kingston Smith retorted: ‘We invited the tribunal to correct what we regard
to be factually incorrect and prejudicial findings… the tribunal’s decision did
not

focus on the appropriate and key issues and criticised Mr Woolf in relation
to the scope of the investigation, a matter that was wholly outside of his
control.’

Kevin Reed