Strand, London, WC2A 2LL
B e f o r e :
| (1)Jonathan Guy Anthony Phillips
(2) Robert Andrew Harland
(suing as Administrators of the Estate of Christo Michailidis)
(3) Despina Papadimitriou
|- and -
|(1) Robin James Symes (a bankrupt)
(2) Robin Symes Limited (in administrative receivership)
(3) Jean-Louis Domercq
(4) Frieda Nussberger
(5) Philos Partners Inc.
(6) Geoff Rowley and Kevin Hellard (trustees in bankrucptcy of the 1st Defendant)
|And in the matter of an issue ordered to be tried between:
|Robin James Symes (a bankrupt)
|- and -
|(1) Jonathan Guy Anthony Phillips
(2) Robert Andrew Harland
(suing as Administrators of the Estate of Christo Michailidis)
(3) Langshaw Kyriacou (a firm)
(4) Baker & McKenzie (a firm)
(5) Lovells (a firm)
(6) Peters & Peters (a firm)
(7) Bracher Rawlins (a firm)
(8) Geoff Rowley and Kevin Hellard (trustees in bankruptcy of Robin James Symes)
(9) Robin James Symes Limited In Liquidation
Mr J Fenwick QC and Miss L A Mulcahy (instructed by Messrs Manches) for the 10th Respondent
Hearing dates: 12th October 2004
Crown Copyright ©
Mr Justice Peter Smith :
THE ADMINISTRATORS' CLAIM
"[Dr Zamar] was to his knowledge under a duty to assist the Court on matter within his expertise and in particular to adhere to the following duties and the following matters:-"
(1) The duty to provide an objective unbiased opinion.
(2) The duty to consider all material facts including those which might detract from his opinion and to avoid selecting and relying only the materials supporting his opinion.
(3) The duty to avoid assuming the role of advocate.
(4) The duty to consider and if appropriate make clear to the Court if and whether he had been unable to reach a definite opinion, because of insufficient information (including a positive duty to consider whether he had sufficient information).
(5) A duty to inform the other parties and the Court of any change of opinion on any material matter and whether or not his fees had been paid to file a written request for directions pursuant to CPR 35.14".
THE ALLEGATION OF FAILURE OF DR ZAMAR
"(1) Dr Zamar formed his initial opinion on a wholly inadequate basis having examined Mr Symes for just one hour and having considered-
(a) by way of factual material only the documents sent to him by Bracher Rawlins on 12th September 2003, which did not include any evidence of how Mr Symes had in fact been functioning in the 20 plus years after his stroke, and
(b) a report of Dr Morris, a consultant psychologist, which made clear that she had not carried out any tests designed to expose lack of effort or simulation on Mr Symes' part.
(2) Dr Zamar did not consider the manner in which Mr Symes had actually been able to conduct his business and legal affairs since his stroke in the early 1980's and did not for that purpose make any or any proper enquiries not did he ask to be provided with relevant information from Mr Symes' former employees and/or from solicitors who had been acting form him.
(3) Despite his duties to the Court and the letter from Lane & Partners dated 8th March 2004 referred to above, and despite paragraphs 3, 4 and 8 of the declaration he had first signed on 28th October 2003 and again signed on 28th January 2004, Dr Zamar refused to reconsider his opinion in the light of the further material sent to him under cover of that letter or even look at that material despite its relevance having been drawn expressly to his attention and the intimation that the Court would be assisted by such consideration. Instead he persevered with his initial opinion and at the trial of the Issue verified his reports of 26th October 2003 and 28th January 2004. When at the direction of the Judge during the course of the trial he did eventually consider the material in SJE28 and SJE29 he was forced to accept that Mr Symes was capable of managing his affairs and that his original opinion could not be sustained.
(4) In verifying his two reports as his evidence in chief Dr Zamar failed to act in conformity with paragraphs 3, 4 and 98 of the said declarations in that -
(a) he could not properly have regarded himself as having "mentioned all matters which I regard as relevant to the opinions I have expressed" as there was material he knew was or might be relevant which he had not considered;
(b) he could not properly have regarded himself as having "drawn to the attention of the court all matters, of which I am aware, which might adversely affect my opinion" as there was material he knew was or might be relevant which he had not considered and which accordingly might have affected adversely his opinion (and which in due course it did); and
(c) he could not properly have regarded himself as having properly complied with his duty to notify "those instructing [him]" or implicitly the court in respect of the requirement for correction or qualification of is report, as such the existence of such a requirement necessarily implied consideration by Dr Zamar of any new material made available to him which he knew was or might be relevant.
(5) having adopted a position as set out in his first report of 26th October 2003 Dr Zamar thereafter ignored and disregarded any evidence or material which was inconsistent and instead actively tried to find material to support his position and assumed a role as an advocate for Mr Symes".
HOW THE DUTY ARISES
"The underlying principle is that the Court has a right and a duty to supervise the conduct of its solicitors, and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally, as was said by Abinger C.B. in Stephens v. Hill. (1) The matter complained of need not be criminal. It need not involve peculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor's duty to ascertain with accuracy may suffice. Thus, a solicitor may be held bound in certain events to satisfy himself that he has a retainer to act, or as to the accuracy of an affidavit which his client swears. It is impossible to enumerate the various contingencies which may call into operation the exercise of this jurisdiction. It need not involve personal obliquity. The term professional misconduct has often been used to describe the ground on which the Court acts. It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to the Court and to realize his duty to aid in promoting in his own sphere the cause of justice. This summary procedure may often be invoked to save the expense of an action. Thus it may in proper cases take the place of an action for negligence, or an action for breach of warranty of authority brought by the person named as defendant in the writ. The jurisdiction is not merely punitive but compensatory. The order is for payment of costs thrown away or lost because of the conduct complained of. It is frequently, as in this case, exercised in order to compensate the opposite party in the action."
NATURE OF DUTY
"B. THE DUTIES AND RESPONSIBILITIES OF EXPERT WITNESSES
The duties and responsibilities of expert witnesses in civil cases include the following:
1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation (Whitehouse v. Jordan,  1 WLR 246 at p. 256, per Lord Wilberforce).
2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise (see Polivitte Ltd. v. Commercial Union Assurance Co. Plc.,  1 Lloyd's Rep. 379 at p. 386 per Mr. Justice Garland and Re J,  F.C.R. 193 per Mr. Justice Cazalet). An expert witness in the High Court should never assume the role of an advocate.
3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion (Re J sup.).
4. An expert witness should make it clear when a particular question or issue falls outside his expertise.
5. If an expert's opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one (Re J sup.). In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report (Derby & Co. Ltd. and Others v. Weldon and Others, The Times, Nov. 9, 1990 per Lord Justice Staughton).
6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side's expert's report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court.
7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports (see 15.5 of the Guide to Commercial Court Practice)".
COSTS DISCRETION UNDER SECTION 51(1)
PRINCIPLES OF COSTS ORDER AGAINST NON-PARTIES
"Since Aiden Shipping Co. Ltd. v. Interbulk Ltd.  A.C. 965 there has been a number of reported decisions where the court has been prepared to order a non-party to pay the costs of proceedings. These decisions may be conveniently summarised under the following heads.
(1) Where a person has some management of the action, e.g. a director of an insolvent company who causes the company improperly to prosecute or defend proceedings: see In re Land and Property Trust Co. Plc.  1 W.L.R. 601; In re Land and Property Trust Co. Plc. (No. 3)  B.C.L.C. 856; In re Land and Property Trust Co. Plc. (No. 2) The Times, 16 February 1993; Court of Appeal (Civil Division) Transcript No. 160 of 1993; Taylor v. Pace Developments Ltd.  B.C.C. 406; In re A Company (No. 004055 of 1991)  1 W.L.R. 1003 and Framework Exhibitions Ltd. v. Matchroom Boxing Ltd. (unreported), 23 September 1992; Court of Appeal (Civil Division) Transcript No. 873 of 1992. It is of interest to note that, while it was not suggested in any of these cases that it would never be a proper exercise of the jurisdiction to order the director to pay the costs, in none of them was it the ultimate result that the director was so ordered.
(2) Where a person has maintained or financed the action. This was undoubtedly considered to be a proper case for the exercise of the discretion by Macpherson of Cluny J. in Singh v. Observer Ltd.  2 All E.R. 751, where it was alleged that a non-party was maintaining the plaintiff's libel action. However, on appeal the evidence showed that the non-party had not been maintaining the action and the appeal was allowed without going into the legal issues raised by the judge's decision: see Singh v. Observer Ltd.  3 All E.R. 777n.
(3) In Gupta v. Comer  1 Q.B. 629 this court approached the power of the court to order a solicitor to pay costs under Ord. 62, r. 11 as an example of the exercise of the jurisdiction under section 51 of the Act of 1981.
(4) Where the person has caused the action. In Pritchard v. J. H. Cobden Ltd.  Fam. 22 the plaintiff had suffered brain damage through the defendant's negligence. That resulted in a personality change which precipitated a divorce. This court held that the defendant's agreement to pay the costs of the divorce proceedings could be justified as an application of the Aiden Shipping Co. Ltd. v. Interbulk Ltd.  A.C. 965 principle: see  Fam. 22, 51.
(5) Where the person is a party to a closely related action which has been heard at the same time but not consolidated - as was the case in Aiden Shipping itself.
(6) Group litigation where one or two actions are selected as test actions: see Joseph Owen Davies v. Eli Lilly & Co.  1 W.L.R. 1136.
I accept that these categories are neither rigid nor closed. They indicate the sorts of connection which have so far led the courts to entertain a claim for costs against a non-party."
"In my judgment the following are material considerations to be taken into account, although I do not suggest that there may not be others which are relevant."
(1) An order for the payment of costs by a non-party will always be exceptional: see per Lord Goff in Aiden Shipping Co. Ltd. v. Interbulk Ltd.  A.C. 965, 980F. The judge should treat any application for such an order with considerable caution.
(2) It will be even more exceptional for an order for the payment of costs to be made against a non-party, where the applicant has a cause of action against the non-party and could have joined him as a party to the original proceedings. Joinder as a party to the proceedings gives the person concerned all the protection conferred by the rules, as to e.g. the framing of the issues by pleadings; discovery of documents and the opportunity to pay into court or to make a Calderbank offer ( Calderbank v. Calderbank  Fam. 93); and the knowledge of what the issues are before giving evidence.
(3) Even if the applicant can provide a good reason for not joining the non-party against whom he has a valid cause of action, he should warn the non-party at the earliest opportunity of the possibility that he may seek to apply for costs against him. At the very least this will give the non-party an opportunity to apply to be joined as a party to the action under Ord. 15, r. 6(2)(b)(i) or (ii).
Principles (2) and (3) require no further justification on my part; they are an obvious application of the basic principles of natural justice.
(4) An application for payment of costs by a non-party should normally be determined by the trial judge: see Bahai v. Rashidian  1 W.L.R. 1337.
(5) The fact that the trial judge may in the course of his judgment in the action have expressed views on the conduct of the non-party constitutes neither bias nor the appearance of bias. Bias is the antithesis of the proper exercise of a judicial function: see Bahai v. Rashidian  1 W.L.R. 1337, 1342H, 1346F.
(6) The procedure for the determination of costs is a summary procedure, not necessarily subject to all the rules that would apply in an action. Thus, subject to any relevant statutory exceptions, judicial findings are inadmissible as evidence of the facts upon which they were based in proceedings between one of the parties to the original proceedings and a stranger: see Hollington v. F. Hewthorn & Co. Ltd.  K.B. 587; Cross on Evidence, 7th ed. (1990), pp. 100-101. Yet in the summary procedure for the determination of the liability of a solicitor to pay the costs of an action to which he was not a party, the judge's findings of fact may be admissible: see Brendon v. Spiro  1 K.B. 176, 192, cited with approval by this court in Bahai v. Rashidian  1 W.L.R. 1337 1343D, 1345H. This departure from basic principles can only be justified if the connection of the non-party with the original proceedings was so close that he will not suffer any injustice by allowing this exception to the general rule.
(7) Again, the normal rule is that witnesses in either civil or criminal proceedings enjoy immunity from any form of civil action in respect of evidence given during those proceedings. One reason for this immunity is so that witnesses may give their evidence fearlessly: see Palmer v. Durnford Ford  Q.B. 483, 487. In so far as the evidence of a witness in proceedings may lead to an application for the costs of those proceedings against him or his company, it introduces yet another exception to a valuable general principle.
(8) The fact that an employee, or even a director or the managing director, of a company gives evidence in an action does not normally mean that the company is taking part in that action, in so far as that is an allegation relied upon by the party who applies for an order for costs against a non-party company: see Gleeson v. J. Wippell & Co. Ltd.  1 W.L.R. 510, 513.
(9) The judge should be alert to the possibility that an application against a non-party is motivated by resentment of an inability to obtain an effective order for costs against a legally aided litigant. The courts are well aware of the financial difficulties faced by parties who are facing legally aided litigants at first instance, where the opportunity of a claim against the Legal Aid Board under section 18 of the Legal Aid Act 1988 is very limited. Nevertheless the Civil Legal Aid (General) Regulations 1989 (S.I. 1989 No. 339/89), and in particular regulations 67, 69, and 70, lay down conditions designed to ensure that there is no abuse of legal aid by a legally assisted person and these are designed to protect the other party to the litigation as well as the Legal Aid Fund. The court will be very reluctant to infer that solicitors to a legally aided party have failed to discharge their duties under the regulations - see Orchard v. South Eastern Electricity Board  Q.B. 565 - and in my judgment this principle extends to a reluctance to infer that any maintenance by a non-party has occurred".
"(7) and (8) Again I can see no valid reason in the circumstances of the present case to justify the exceptions to these two principles which would be required if Mr. Bramley's evidence in the Hodgson action were to be allowed to justify the present claim against Halvanto".
NEED FOR WARNING
"5. The witness analogy
No one can be sued in defamation for anything said in court. The rule confers an absolute immunity which protects witnesses, lawyers and the judge. The administration of justice requires that participants in court proceedings should be able to speak freely without being inhibited by the fear of being sued, even unsuccessfully, for what they say. The immunity has also been extended to statements made out of court in the course of preparing evidence to be given in court. So it is said that a similar immunity against proceedings for negligence is necessary to enable advocates to conduct the litigation properly".
"18. The witness analogy"
This argument starts from the well-established rule that a witness is absolutely immune from liability for anything which he says in court. So is the judge, counsel and the parties. They cannot be sued for libel, malicious falsehood or conspiring to give false evidence: Marrinan v Vibart  1 QB 528. The policy of this rule is to encourage persons who take part in court proceedings to express themselves freely. The interests of justice require that they should not feel inhibited by the thought that they might be sued for something they say. And, as Fry LJ explained in the passage which I have already cited from Munster v Lamb 11 QBD 588, 607 this policy is regarded as so important that it requires not merely qualified privilege but absolute immunity.
The application of the analogy to the negligence of lawyers involves generalising the policy of the witness immunity and expressing it, as Lord Diplock did in Saif Ali v Sydney Mitchell & Co  AC 198, 222A, as a "general immunity from civil liability which attaches to all persons in respect of their participation in proceedings before a court of justice". Stated at this level of generality, it includes immunity for advocates from liability for anything that they may do. The rationale is said to be to "ensure that trials are conducted without avoidable stress and tensions of alarm and fear in those who have a part to play in them".
My Lords, with all respect to Lord Diplock, it seems to me that to generalise the witness immunity in this way is illegitimate and dangerous. In the High Court of Australia in Mann v O'Neill (1997) 191 CLR 204, 221, 912 McHugh J spoke of the perils of extending the witness immunity by analogy. There is, he said, a temptation:
"to recognise the availability of the defence for new factual circumstances simply because they are closely analogous to an existing category (or cases within an existing category) without examining the case for recognition in light of the underlying rationale for the defence."
What is the rationale of the witness immunity? In Taylor v Director of the Serious Fraud Office  2 AC 177, 215C, I said that the policy of the immunity was "to encourage freedom of expression" and that was why it was limited to cases in which "the alleged statement constitutes the cause of action". My noble and learned friend, Lord Hope of Craighead, explained, at p 219H, that the immunity did not, for example, protect a witness against an action for malicious prosecution based on what he had said to the police because "it is the malicious abuse of process, not the making of the statement, which provides the cause of action". In other words, the immunity is based upon a perception that witnesses would otherwise be less inclined to come forward and tell the truth. They would behave differently in a way which was inimical to the interests of justice.
It is not sufficient, therefore, to explain any immunity relating to court proceedings by saying that the people involved should be free from "avoidable stress and tensions". That merely suggests that everyone would find litigation more agreeable if no awkward consequences could follow from anything which the participants did. It is another version of the vexation argument, which I have already rejected. It is necessary to go further and explain why the public interest requires that a particular participant should be free from the stress created by the possibility that he might be sued. How would he otherwise behave differently in a way which was contrary to the public interest?
If one asks the question in this way, as I think one must, then it becomes apparent that Lord Diplock was inconsistent in rejecting the divided loyalty argument and the cab rank argument but accepting the witness analogy. It involves, as Lord Diplock himself would have put it, a petitio principii. The witness rule depends upon the proposition that without it, witnesses would be more reluctant to assist the court. To establish the analogy, it is necessary to point to some similar effect on the behaviour of lawyers. But Lord Diplock rejected the only two candidates put forward for likely changes in behaviour and offered no others. The proposition that absence of immunity would have an effect contrary to the public interest was assumed without argument.
Mr Scott invited your Lordships to apply by analogy the decision of the Court of Appeal in Stanton v Callaghan  QB 75, in which it was held that an expert witness could not be sued for agreeing to a joint experts' statement in terms which the client thought detrimental to his interests. He said that this was an example of a general immunity for acts done in the course of litigation. But that seems to me to fall squarely within the traditional witness immunity. The alleged cause of action was a statement of the evidence which the witness proposed to give to the court. A witness owes no duty of care to anyone in respect of the evidence he gives to the court. His only duty is to tell the truth. There seems to me no analogy with the position of a lawyer who owes a duty of care to his client.
Nor is there in my opinion any analogy with the position of the judge. The judge owes no duty of care to either of the parties. He has only a public duty to administer justice in accordance with his oath. The fact that the advocate is the only person involved in the trial process who is liable to be sued for negligence is because he is the only person who has undertaken a duty of care to his client".
"14. Wasted costs orders
The judgment of the Court of Appeal in Ridehalgh v Horsefield  Ch 205, 226-231 contains a history of the wasted costs jurisdiction. Briefly stated, the court had jurisdiction before 1990 to order solicitors to pay costs wasted by their clients or other parties by reason of their misconduct, default or serious negligence. The jurisdiction did not apply to barristers. But section 4 of the Courts and Legal Services Act 1990 conferred power to make rules under which the court could order any legal representative to pay costs wasted by any party as a result of "any improper, unreasonable or negligent act or omission" on their part. Rules to this effect came into force on 1 October 1991: RSC Ord 62, r 11. Sections 111 and 112 of the Act conferred similar powers on judges and magistrates in criminal proceedings.
For present purposes, the significance of this development is that it made advocates, both barristers and solicitors, liable for negligence in the conduct of litigation. It is true that it was a limited form of liability because it was restricted to the payment of wasted costs. It did not extend to any other loss which their negligence might have caused to their clients or other parties. But the costs of modern litigation can amount to a good deal of money. Furthermore, the possibility that the negligent conduct of litigation may lead to a wasted costs order being visited upon the advocate by summary process, before the very judge hearing the case, is likely to be more present to the mind of an advocate than the prospect of an action for negligence at some time in the future. If, therefore, the possibility of being held liable in negligence is calculated to have an adverse effect on the behaviour of advocates in court, one might expect this to have followed, at least in some degree, from the introduction of wasted costs orders.
Such was certainly the submission of counsel for both the Law Society and the Bar Council to the Court of Appeal in Ridehalgh v Horsefield  Ch 205. The Courts and Legal Services Act 1990 had extended rights of audience in the superior courts to solicitors and section 62 recognised that they should in that capacity have whatever immunities were enjoyed by barristers:
"(1) A person--(a) who is not a barrister; but (b) who lawfully provides any legal services in relation to any proceedings, shall have the same immunity from liability for negligence in respect of his acts or omissions as he would if he were a barrister lawfully providing those services."
The two professional bodies argued that any liability for wasted costs orders should be subject to the immunity recognised in section 62. Their counsel were not however agreed on how the divided loyalty of the advocate would be affected. Mr Matheson QC for the Law Society said, at p 213E, that it would "affect the willingness of legal representatives fearlessly to represent their clients' interests". Mr Rupert Jackson QC, for the Bar Council, advanced, at pp 217-218, the Rondel v Worsley  1 AC 191 argument that it would affect the ability of the barrister "to be able to perform his duty to the court fearlessly and independently". Either version of the argument would have made a sizeable hole in the new jurisdiction, particularly in its application to barristers in criminal proceedings. The Court of Appeal rejected it. Since then, many wasted costs orders have been made as a result of the negligent conduct of legal proceedings.
My Lords, I accept that the liability of a negligent advocate to a wasted costs order is not the same as a liability to pay general damages. But the experience of the wasted costs jurisdiction is the only empirical evidence we have available in this country to test the proposition that such liability will have an adverse effect upon the way advocates perform their duty to the court. There is no doubt that the jurisdiction has given rise to problems, particularly in exercising it with both fairness and economy. But I have found no suggestion that it has changed standards of advocacy for the worse. On the contrary. In Fletamentos Maritimos SA v Effjohn International BV (unreported) 10 December 1997; Court of Appeal (Civil Division) Transcript No 2115 of 1997, the Court of Appeal made a wasted costs order against a firm of solicitors who had instructed counsel to made a hopeless application for leave to appeal. Simon Brown LJ ended his judgment by saying:
"Nothing in this judgment should, or I believe will, deflect legal representatives, on instructions, from vigorously pursuing and arguing the most difficult cases. An argument, however unpromising, is perfectly properly advanced (not least on an application for leave to appeal) provided only and always that it is respectable and is not being pursued for reasons other than a genuine belief in the possibility of its success. If our order today were to discourage some of the more absurd arguments with which this court is sometimes plagued, I for one would not be regretful."".
i) The need to stop matters being litigated,
ii) The need to protect witnesses themselves from suits, and
iii) The need to encourage witnesses to come forward and say what they have to in Court.
"I pause here to note that immunity is not granted primarily for the benefit of the individuals who seek it. They themselves are beneficiaries of the overarching public interest, which can be expressed as the need to ensure that the administration of justice is not impeded. This is the consideration which should be paramount. And it is not only the conduct of the immediate hearing which we should consider to be the "administration of justice." This is not a narrowly-drawn phrase: it is best served by a purposive construction. In this I agree with Lord Wilberforce who said in Roy v. Prior  A.C. 470, 480: "Immunities conferred by the law in respect of legal proceedings need always to be checked against a broad view of the public interest." (Emphasis added.)"
Each party who comes, or is about to come, before a court is participating in an event which supervenes individual concerns and interests. When we are concerned with the proper and smooth administration of justice through our legal system we should not seek to place burdens on those who participate in it at any stage. Thus I do not think it necessary to make distinctions between the various reasons which have been given to justify the granting of immunity and approach this situation in an algorithmic fashion and say that some reasons should apply to some cases but not to others; the case is best approached by asking the simple question: would it serve the interests of the administration of justice to grant immunity? To answer this question we need to examine the role and place of an expert in the legal system".
"Against the analysis I consider the particular circumstances of this case. On any basis the defendant when attending the meeting with his opposite number enjoyed the immunity. It is true that he did not do so pursuant to R.S.C., Ord. 38, r. 38 but the purpose of the meeting was to identify those parts of the evidence and the other's opinion which they could agree and those which they could not. It was in the public interest to do so. The duty to the court must override the fear of suit arising out of a departure from a previously held position. The expert must be able to resile fearlessly and with dignity. In the instant case both experts resiled from more extreme positions. In theory, at least, the defendants could have sued their expert for placing them in a more adverse position. It must follow that there was no duty to inform the lay clients or the solicitors or to seek instructions before recording the concession in the joint statement".