EBR HOLDINGS LIMITED (IN LIQUIDATION) v MCLAREN GUISE ASSOCIATES LIMITED [2016] NZCA 622

EBR HOLDINGS LIMITED (IN LIQUIDATION) v MCLAREN GUISE ASSOCIATES LIMITED [2016] NZCA 622 [19 December 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA691/2015[2016] NZCA 622BETWEEN EBR HOLDINGS LIMITED (INLIQUIDATION)AppellantAND MCLAREN GUISE ASSOCIATESLIMITEDFirst RespondentNIGEL DALE HARRISONSecond RespondentHearing: 25 October 2016Court: Winkelmann, Asher and Brown JJCounsel: P C Murray and K H Morrison for AppellantJ N Bierre and L G Cox for RespondentsJudgment: 19 December 2016 at 12.30 pmJUDGMENT OF THE COURTA The appeal is allowed.B The order striking out the first and third causes of action is set aside.C The respondents must pay the appellant costs for a standard appeal on a band A basis and usual disbursements. We certify for second counsel.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] Causes of action alleging false representations by a chartered accountant inan affidavit and in a subsequent liquidator's examination under s 261 of theCompanies Act 1993 were struck out by Brewer J in the High Court on the ground that witness immunity applied to those statements.1[2] The appellant, EBR Holdings Limited (EBR), invites the Court to reverse that decision and hold that witness immunity should no longer apply to expert witnesses in civil proceedings in New Zealand. Reliance is placed on the decision of the Supreme Court of the United Kingdom in Jones v Kaney removing the immunity ofan expert to a claim in negligence or breach of contract brought by the expert'sclient.2[3] EBR secondly contends that witness immunity does not extend to aninterviewee's statements in a s 261 examination. In any event, EBR submits that theJudge erred in not leaving for trial a determination of the application of witness immunity to the particular circumstances of the present case.Factual background[4] The first respondent, McLaren Guise Associates Limited (MGAL), wasEBR's accountant prior to its going into liquidation. The second respondent,Mr Harrison, is a director of MGAL and a qualified chartered accountant. Therespondents prepared EBR's annual financial statements for the years ended31 March 2006 to 31 March 2008. The 2008 financial statements recorded thatEBR's shareholders had significant current account debts. EBR (under the control ofits liquidators) applied for summary judgment against the shareholders to recover the debts evidenced in the 2008 financial statements.[5] Mr Harrison swore an affidavit in support of the shareholders' opposition to EBR's application for summary judgment to the effect that the 2008 financial statements were erroneous. He annexed to his affidavit an updated financial1 EBR Holdings Ltd (In Liq) v McLaren Guise Associates Ltd [2015] NZHC 1996, [2016] 2 NZLR 96 [High Court judgment].2 Jones v Kaney [2011] UKSC 13, [2011] 2 AC 398.statement summary which concluded that the shareholders collectively owed very little to EBR. The summary judgment application was accordingly dismissed.3[6] Subsequently, Mr Harrison was examined under oath by EBR's liquidatorsunder s 261 of the Companies Act. Mr Harrison affirmed the contents of his affidavit and the annexed updated financial statement summary.[7] EBR claims the material statements made by Mr Harrison in his affidavit were false and he knew they were false or he did not believe them to be true or was reckless as to their truth. A similar allegation is made in respect of Mr Harrison'srepetition of those statements in the course of his examination by EBR's liquidators.The amended statement of claim dated 12 December 2014 pleaded three causes of action:(a) deceit/injurious falsehood;(b) misuse of confidential information; and(c) negligence.[8] An application to strike out the statement of claim in reliance on the principle of witness immunity was declined by Associate Judge Christiansen for the dual reasons that recent English authority suggested that the principles were not sufficiently clear to support a strike out order and a factual enquiry was required which was not available on the affidavit evidence.4[9] On review Brewer J ruled that the High Court was bound by the decision of this Court in New Zealand Defence Force v Berryman,5 and accordingly witness immunity was available to the respondents.6 That immunity applied both to the affidavit and updated summary of Mr Harrison offered as evidence in the District3 EBR Holdings Ltd v Van Duyn DC Waitakere CIV-2009-090-1560, 7 September 2010 [Summary judgment].4 EBR Holdings Ltd (In Liq) v McLaren Guise Associates Ltd [2015] NZHC 607 [Judgment of Associate Judge Christiansen].5 New Zealand Defence Force v Berryman [2008] NZCA 392.6 High Court judgment, above n 1, at [35]–[36].Court, and to his subsequent comments in the liquidator's examination.Consequently, the Judge ordered that the first and third causes of action should be struck out as they related solely to statements made in those two situations covered by witness immunity.7 However, he declined to strike out the second cause of action, misuse of confidential information, on the basis that it involved advice entirely distinct from the Court proceedings.8[10] On 8 October 2015 EBR filed a second amended statement of claim adding two further causes of action:(a) negligent omission to act to correct false representations; and(b) a claim for an order for wasted costs against Mr Harrison under s 51G of the Judicature Act 1908.[11] Leave to appeal to this Court was granted by Brewer J on 3 November 2015.9Witness immunity generally[12] The longevity of the common law principle of witness immunity is manifest in the statement of Stout CJ in 1902 in Jellicoe v Haselden:10The cases are numerous in which Judges, counsel, witnesses, & c, have been held not liable for statements made by them in Courts, and it is not necessary to cite them. The law was laid down broadly by Lord Mansfield, CJ, in Rex v Skinner (Lofft 55) as follows: "Neither party, witness, counsel, jury, orJudge, can be put to answer, civilly or criminally for words spoken inoffice." Numerous cases since 1772 have followed that rule .The original focus of the immunity was on defamation claims;11 in New Zealand, such claims are now the subject of the absolute privilege conferred by s 14(1) of the7 At [41]–[44] and [71]–[74].8 At [87]–[88].9 EBR Holdings Ltd (In Liq) v McLaren Guise Associates Ltd [2015] NZHC 2704.10 Jellicoe v Haselden (1902) 22 NZLR 343 (SC) at 352.11 See Cutler v Dixon (1585) 4 Co Rep 14b; 76 ER 886. In New Zealand see Teletax Consultants Ltd v Williams [1989] 1 NZLR 698 (CA).Defamation Act 1992.12 Witness immunity has since been applied to bar other civil causes of action, such as negligence.[13] In Darker v Chief Constable of West Midlands Lord Cooke observed that, while in principle absolute immunity is inconsistent with the rule of law, in a few strictly limited categories of cases it has been granted, grudgingly, for practical reasons.13 The practical reasons which justify the immunity from suit enjoyed by a witness are to encourage freedom of speech in the judicial process, by relieving the witness of the fear of vexatious litigation, and to limit the scope for re-litigation.14[14] The circumscribed nature of the common law immunity is reflected in the qualifications noted by this Court in New Zealand Defence Force v Berryman:[68] We recognise that the immunity is limited. It is confined to what is said in court and necessary preliminaries to that (see Darker). It is also merely an immunity from civil suit. Thus an expert witness may face professional sanctions in respect of evidence, see for instance Meadow. And obviously criminal prosecution for perjury may result from the deliberate giving of false evidence. Claims of malicious prosecution are maintainable even though such a claim might necessarily involve impugning the evidencegiven during the preceding criminal proceedings. To those exceptions Lord Collins in Jones v Kaney added prosecutions for perverting the course of justice, contempt of court or misfeasance in public office.15The application of witness immunity to expert witnesses[15] While the immunity of witnesses of fact is settled law,16 in England and Wales it seems to have been simply accepted that the immunity extended to expert witnesses.17 As noted in Jones v Kaney there was no reported case where the12 See a description of the immunity, citing Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431 (CA), in Committee on Defamation Recommendations on the Law of Defamation: Report of the Committee on Defamation (December 1977) at [167].13 Darker v Chief Constable of West Midlands [2001] 1 AC 435 (HL) at 453.14 New Zealand Defence Force v Berryman, above n 5, at [67].15 Jones v Kaney, above n 2, at [82].16 In Jones v Kaney Lord Collins noted at [75] that general witness immunity was reaffirmed by: the High Court of Australia in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12, (2005) 223 CLR 1 at [19]; the New Zealand Supreme Court in Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7; and the Ontario Court of Appeal in Reynolds v Kingston (City) Police Services Board2007 ONCA 166, (2007) 84 OR (3d) 738.17 Tristam Hodgkinson and Mark James Expert Evidence: Law & Practice (4th ed, Sweet and Maxwell, London, 2015) at [14-001].immunity was invoked against a claim for breach of a duty of care brought against a professional expert witness by his client until 1992 in Palmer v Durnford Ford.18 In that case the proposition that immunity applied was not challenged, the live issue being the extent to which the immunity applied to work which was preliminary to the expert giving evidence.[16] Coincidentally it was in 1992 that the first New Zealand reported case, the High Court decision of Eichelbaum CJ in Dentice v Valuers Registration Board,19recognised the immunity specifically in the context of an expert witness. The issue there was whether persons subject to the jurisdiction of domestic disciplinary bodies had immunity from prosecution before such tribunals in respect of evidence provided for the purposes of Court proceedings.[17] Palmer was followed in England by the Court of Appeal in Stanton v Callaghan, which concerned the circumstances in which an expert witness should be granted immunity from suit in respect of work done in preparing a report prior to and in contemplation of pending proceedings.20 The claim by the plaintiffs against a structural engineer engaged to prepare a report in respect of their house which had suffered subsidence damage was struck out. Multiple judgments were delivered which, Nourse LJ commented, served to demonstrate that on the question of expert witness immunity in general different views are tenable.21[18] His Lordship stated that the extent of an expert witness's immunity from suitwas still in course of development and no doubt could and would be developed on a case by case basis. As Lord Phillips observed in Jones v Kaney,22 Palmer andStanton was the extent of the relatively sparse authority in England and Walesdealing directly with the immunity of an expert witness to suit by the expert's ownclient.18 Palmer v Durnford Ford [1992] QB 483.19 Dentice v Valuers Registration Board [1992] 1 NZLR 720 (HC).20 Stanton v Callaghan [2000] QB 75 (CA).21 At 109.22 Jones v Kaney, above n 2, at [26]. Lord Dyson remarked that the application of the rule in relation to the liability of experts to their clients had shallow roots: at [111].[19] Stanton was first noted by this Court in B v Attorney-General, which concerned whether there was an arguable case that a duty of care was owed to family members in respect of investigations by the Department of Social Welfare about alleged child sexual abuse.23 In the High Court Gallen J considered that, had it been necessary to decide, witness immunity would have applied to the actions of social workers whose intervention led to the initiation of judicial proceedings.24 In the Court of Appeal, while summarising the scope of witness immunity, Keith and Blanchard JJ did not make any finding on the issue because the question was subsumed within the more specific arguments arising under the scheme of the Children and Young Persons Act 1974.25 Tipping J preferred to leave open the question of witness immunity.26[20] Both Stanton and B v Attorney-General were cited by Associate Judge Faire in Keesing v Davison.27 There, a claim against a specialist consultant geriatrician to the Auckland District Health Board who, on instructions from counsel appointed to assist the Court, had prepared a report for the purposes of proceedings under the Protection of Personal Property Rights Act 1988, was struck out on the grounds thatthe consultant's report was covered by witness immunity.28 The plaintiff appeared in person and it does not appear from the judgment that the application of the witness immunity principle was challenged.[21] In Berryman the respondents alleged that the Army acted improperly ingiving evidence and making submissions at a Coroner's inquest.29 Although the claim was formulated as an allegation of misfeasance in public office, this Court considered the case was not really akin to a claim for malicious prosecution, noting that the Army had not initiated the coronial process.30 The Court concluded that the claim against the Army, to the extent to which it was based on evidence given and submissions made to the Coroner, was inconsistent with the immunity, in particular23 B v Attorney-General [1999] 2 NZLR 296 (CA) [B v Attorney-General (CA)].24 B v Attorney-General [1997] NZFLR 550 (HC).25 B v Attorney-General (CA), above n 23, at [32].26 At [51].27 Keesing v Davison HC Auckland CIV-2005-404-38, 23 June 2005.28 At [27].29 New Zealand Defence Force v Berryman, above n 5.30 At [71].because the respondents were largely seeking to re-litigate the Coroner's finding.31However, as Brewer J noted,32 it is arguable that Berryman did not concern evidence given by an expert.[22] In cases addressing the removal of the immunity for barristers some reservations were voiced about the retention of expert witness immunity. In Arthur JS Hall & Co v Simons Lord Steyn referred to the discussion in Tort Law and Economic Interests33 about the strength of the case for removing the immunity for paid expert witnesses.34[23] Noting Lord Steyn's comments, Elias CJ in Lai v Chamberlains contrasted the duty of a barrister with other participants in Court proceedings:35The immunities of other participants in Court proceedings are not analogous because witnesses and the Judge do not assume duties of care to a party. (It is unnecessary to express any view on the liability of the professional witness for negligence in the preparation of reports which may form the foundation of evidence; witness immunity may well not extend so far.) The case of the advocate who assumes the conduct of litigation on behalf of a client to whom he owes duties of care (often as a matter of contractual undertaking) is entirely different.[24] The law in England and Wales was radically changed36 by the UK SupremeCourt's decision in Jones v Kaney.37 It concerned a claim in negligence by Mr Jones, who had suffered injuries in a road accident, against a consultant clinical psychologist engaged to prepare a report for his personal injury proceedings. When the experts were ordered to prepare a draft joint statement, the defendant psychologist signed a statement prepared by the opposing expert to the effect that the plaintiff did not have any psychiatric disorder. The plaintiff then settled his injury claim.31 At [72].32 High Court judgment, above n 1, at [35] where Brewer J noted that the witness, an Army major, was a military engineer whose evidence was about what he did and the decisions he made rather than offering expert opinion.33 Peter Cane Tort Law and Economic Interests (2nd ed, Clarendon Press, Oxford, 1996) at 237.34 Arthur JS Hall & Co v Simons [2002] 1 AC 615 (HL) at 679.35 Lai v Chamberlains, above n 16, at [54] (emphasis added).36 See discussion in Expert Evidence: Law & Practice, above n 17.37 Jones v Kaney, above n 2.[25] In the proceeding against the psychologist Mr Jones claimed that he had to settle his claim for significantly less than he would have if the defendant had not signed the joint statement in its terms. The claim was struck out at first instance on the basis the psychologist enjoyed immunity from suit, but the Supreme Courtallowed Mr Jones' appeal by a majority of five to two.38[26] There was debate before us as to the breadth of the ratio of Jones v Kaney. The respondents contended that the decision was confined to claims in negligenceagainst an expert by the party who retained the witness to give evidence. EBR'ssubmission, that the decision went further and abolished all witness immunity for expert witnesses, may have been influenced by the Law Reports headnote which states:39 any exception to the general rule that every wrong should have a remedyhad to be justified as being necessary in the public interest and should be kept under review; that no justification had been shown for continuing to hold expert witnesses immune from suit for breach of duty in relation to the evidence which they gave in court or for the views which they expressed in anticipation of court proceedings; and that, accordingly, the immunity from suit for breach of duty which expert witnesses had enjoyed in relation to their participation in legal proceedings should be abolished.[27] While there are dicta within the five judgments in the majority which may appear to extend to expert witnesses generally,40 we agree with the view of Brewer J that the ratio of Jones v Kaney is confined to the liability of the so-called "friendly"expert, namely one who was retained by the person bringing suit against the expert.41As Lord Collins stated, there is nothing in the decision which affected the position ofthe "adverse" expert.42Analysis[28] The appropriate starting point to the strike out jurisdiction is the caution in the judgment of Elias CJ in Couch v Attorney-General:4338 The appeal went directly to the Supreme Court under the leap frog procedure in s 12 of the Administration of Justice Act 1969 (UK).39 Jones v Kaney, above n 2, at 398.40 Lord Phillips' conclusion at [61] is an example.41 High Court judgment, above n 1, at [21].42 Jones v Kaney, above n 2, at [73].43 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 (footnotes omitted).[33] It is inappropriate to strike out a claim summarily unless the courtcan be certain that it cannot succeed. The case must be "so certainly or clearly bad" that it should be precluded from going forward. Particular care is required in areas where the law is confused or developing. And in both X (Minors) v Bedfordshire County Council and Barrett v Enfield London Borough Council liability in negligence for the exercise or non-exercise of a statutory duty or power was identified as just such a confused or developing area of law. Lord Browne-Wilkinson in X thought it of great importance that such cases be considered on the basis of actual facts found at trial, not on hypothetical facts assumed (possibly wrongly) to be true for the purpose of the strike-out.[29] The reference to hypothetical facts assumed to be true reflects the traditional approach on strike out applications that pleaded facts will be assumed to be capable of proof except where they are entirely speculative and without foundation.44[30] The amended statement of claim alleged that, in the context of EBR'ssummary judgment application, Mr Harrison was held out as a professional chartered accountant to provide assistance to the Court in the nature and position of an expert or professional witness. Consequently, Mr Bierre for the respondents accepted that for the purposes of the argument before us Mr Harrison was to be deemed to be an expert witness.[31] As in England prior to Jones v Kaney, the few cases in New Zealand in which the application of the immunity to an expert witness has arisen have proceeded on the assumption that it does. English authority was largely adopted and there has been no rigorous inquiry in New Zealand as to the rationale for the application of the immunity for expert witnesses or its boundaries. Noting that history, it has been pointed out that although the law of evidence was codified, witness immunity from civil liability is not mentioned in the Evidence Act 2006 and therefore remains subject to the common law.45[32] From our review of recent authorities it is apparent that the availability and scope of expert witness immunity in New Zealand is in an unsettled state. The Supreme Court has not had occasion to consider the subject. The issue did not fall for determination in this Court in B v Attorney-General. Teletax Consultants did not concern expert witnesses. Both those cases were on appeal from decisions at the44 Attorney-General v McVeagh [1995] 1 NZLR 558 (CA) at 566.45 Andrew Beck "Immunity of expert witnesses" [2011] NZLJ 127.strike out stage. Dentice was not a strike out judgment but was decided prior to the developments that we have outlined, and does not bind another High Court judge.[33] Berryman did not directly address the specific issue of expert witness immunity. It may not, in any event, be an expert immunity case. Even if it is, it may not relate to the same sort of expert immunity issues that arise in this case. While deference to appellate authority was understandable,46 we differ from Brewer J in his perception that the combination of Berryman and the direct application of immunity to expert witnesses in High Court decisions such as Dentice supported a conclusion that the law in New Zealand on expert witness immunity is in any way settled.47[34] So how is the issue of immunity for expert witnesses to be approached in the High Court? The judgment of Lord Dyson in Jones v Kaney contrasted two possible starting points for a consideration of the question whether experts should have immunity:48(a) A general rule that every wrong should have a remedy and that any exception to that rule must be justified as being necessary in the public interest.(b) A different general rule that witnesses may not be sued for anything said in Court and that, if there is to be an exception to that rule, it too must be justified in the public interest.[35] Lord Dyson regarded the first rule as a cornerstone of any system of justice, a departure from which requires strict and cogent justification.49 Consistent with that view, we consider that it is for the respondents to satisfy the Court in respect of their pleaded affirmative defence that, in the event Mr Harrison is held to be an expert witness (whether friendly or adverse) who gave expert evidence, immunity from suit by EBR is justified. It is because no analysis of that kind has previously been46 High Court judgment, above n 1, at [36].47 At [35].48 Jones v Kaney, above n 2, at [108]–[109].49 At [113].undertaken in New Zealand that Berryman and other prior authorities are not determinative on the issue.[36] It has been suggested that the reasoning process that enabled the Supreme Court in Lai v Chamberlains to abolish immunity for barristers is likely to be employed to find that there is today no justification for immunity for expert witnesses.50 However, the availability of immunity for expert witnesses is not a binary issue. Several questions may need to be resolved, including: what sort of witness qualifies as an expert; what evidence given by a qualifying witness amounts to expert evidence; and, whether the immunity should be available to all qualifyingexperts or whether the distinction drawn between "friendly" and "adverse" expertwitnesses should be adopted in New Zealand.[37] Another emerging issue concerns the availability of immunity in circumstances where the provision of evidence may amount to the tort of deceit.51 In the case of defamatory statements, even malice is protected by the absolute privilege conferred by s 14(1) of the Defamation Act. However where deceit is alleged or proved, should immunity be available in respect of conduct not covered by that statute?[38] These several issues (and no doubt others will emerge from future cases) underscore the fact that the law in New Zealand on expert witness immunity is a work in progress. As such, it is ill-suited for development by resort to the strike out jurisdiction. For this reason alone we consider that the appeal should be allowed andEBR's claim should be permitted to proceed to trial.[39] Further, the degree of factual uncertainty in this case renders Lord Browne-Wilkinson's view in X (Minors) v Bedfordshire County Council,52 that cases which involve developing areas of law should be considered on the basis of actual, rather than hypothetical, facts, particularly pertinent. As we explain below,this is an additional reason why we consider that EBR's claim should be fullyventilated at trial.50 Andrew Beck, above n 45.51 See for example Smart v The Forensic Science Service Ltd [2013] EWCA Civ 783.52 X (Minors) v Bedfordshire County Council [1995] 2 AC 633 (HL) at 741.[40] In discussing witness immunity in Berryman, this Court recognised that in marginal cases, where there is uncertainty as to which side of the line a particular claim falls, the Courts should be slow to resort to the strike out jurisdiction.53 Of course in the present case this Court is being invited to draw (or redraw) the line for immunity so far as expert witnesses in New Zealand are concerned. While concerned with a very different set of facts we have empathy with the observation of Aikens LJ in Smart v The Forensic Science Service Ltd:54The general principle must be that where there is a wrong there is a remedyand immunity is a derogation from a person's right of access to a courtwhich requires to be justified. A justifiable boundary has to be drawn somewhere, but it cannot be drawn when you do not know the terrain.[41] We noted at the commencement of our analysis the respondents' concessionthat for the purposes of the appeal Mr Harrison is an expert witness. However, thatconcession does not reflect the respondents' general litigation stance. Indeed the respondents' strike out application contended that, even if the Jones v Kaneyexception were to be adopted in New Zealand, it had no application because of two factual matters specific to this case:(a) Mr Harrison was a witness of fact, not an expert witness, and did not purport to give expert evidence or qualify himself as an expert. Nor was he an independent witness, having been originally involved inpreparing EBR's 2008 financial statements.55(b) Alternatively, even if Mr Harrison was an expert witness, EBR did not retain him to give evidence and hence he was not a "friendly" expert.[42] On the issue of Mr Harrison's expertise EBR relied on its pleadingconcerning the affidavit in the summary judgment application.56 On the second issue it countered that Jones v Kaney was not limited to a negligence claim brought53 New Zealand Defence Force v Berryman, above n 5, at [68].54 Smart v The Forensic Science Service Ltd, above n 51, at [36].55 The statement of defence admitted only that Mr Harrison was held out to the Court as a professional accountant. The balance of the allegation concerning the nature of his evidence was denied.56 See [30] above.against an expert witness by the party who retained the witness to give expert evidence.[43] A copy of Mr Harrison's affidavit was handed up during argument.57 No issue arises as to its form because it was sworn on 9 October 2009 before the requirement to comply with the code of conduct for expert witnesses was introduced in the District Court.58 However there may be scope for debate as to whether the substance of the affidavit is properly viewed as expert evidence at all. Mindful of the passage from Couch set out above,59 it is our view that it is unsatisfactory to determine important issues of principle on the assumption (possibly wrong) that Mr Harrison's evidence is to be viewed as that of an expert.[44] Further, in accordance with the traditional strike out principles, bothAssociate Judge Christiansen and Brewer J approached the respondents' applicationon the assumption that Mr Harrison was an expert witness. But neither judgment below took a position on the issue whether Mr Harrison was a friendly or an adverse expert. That may have been a consequence of the absence of an explicit pleading to the effect that Mr Harrison was engaged as an expert witness by the shareholders.[45] In this Court, however, Mr Harrison's expert categorisation was hotlycontested. EBR described as simplistic the view that Mr Harrison was a witness adverse to EBR merely because he gave evidence for the shareholders in the District Court. EBR argued that the present case demonstrates that the enquiry must go deeper; while an expert giving evidence will not generally owe duties to the opposing party, that will not always be so.[46] The third cause of action in negligence in EBR's amended statement of claimincludes the following allegations:138 The first and second defendants owed the plaintiff a duty of care to avoid acts or omissions which the first and second defendants could reasonably foresee would be likely to injure the plaintiff.57 We were not provided with a transcript of the s 261 interview.58 The District Court Rules 1992 which then applied were revoked when the District Court Rules 2009 came into force on 1 November 2009. See now r 9.34(2)(a) of the District Court Rules 2014.59 At [28].139 The false representations made by the first and/or second defendants, as recorded in the Affidavit and the Updated Summary and made during the Examination, was a breach of their duty of care to the plaintiff.[47] EBR submitted that the respondents' unique role and their use of informationobtained during their engagement put them in proximate relationships with both the shareholders and EBR. Such relationships meant that, even while giving evidence for the shareholders, Mr Harrison owed duties to EBR and was not truly adverse to EBR.[48] The respondents, on the other hand, described EBR's argument asconvoluted, contending that there was no tenable argument that Mr Harrison gaveevidence as a "friendly" expert in the sense contemplated in Jones v Kaney. They argued that the appropriate enquiry is not whether the claimant has previously held some relationship with the expert but whether the expert was engaged by or on behalf of the claimant to give evidence directly at issue in the claim.[49] On the facts of this case, the proposition that Mr Harrison was not a witness adverse to EBR cannot be dismissed out of hand. The conclusion on that issue could be determinative of the claim for immunity. Alternatively, the pleaded assertion that a duty of care was owed to EBR may not be established at trial. Again, however, it is unsatisfactory in our view to determine the appeal on the basis that the pleadedallegation of a duty of care owed by the respondents to EBR is "provable".[50] EBR also contends that the respondents will need to establish that the immunity covers their actions prior to the affidavit being sworn and prior to the proceeding being commenced. It is their position that evidence needs to be heard regarding the circumstances in which the updated summary was prepared and used in order to determine whether the immunity is available.[51] Finally, we note that a particular feature of this case which does not arise in the authorities cited in argument is the fact that, although he swore an affidavit which was on the face of it contrary to the interests of EBR, on one view of the matter Mr Harrison was endeavouring to correct material which he had previously prepared and which was being placed before a Court (albeit by EBR). Indeed passages fromthe District Court judgment declining the summary judgment application, which are recited in the amended statement of claim, included the following:60[45] In my view the liquidators have not discharged the onus. Leading me to this conclusion are:a) The accounts have been rewritten by their original author, a professional, as having originally been inaccurate.[52] The code of conduct for expert witnesses states that an expert witness has anoverriding duty to assist the Court impartially on relevant matters within the expert'sarea of expertise. It provides that, if an expert witness believes that his or her evidence or any part of it may be incomplete or inaccurate without some qualification, that qualification must be stated in his or her evidence.61[53] There is no explicit requirement that an expert witness must take steps to correct evidence previously provided which the expert considers to be inaccurate in some material respect. However an expert witness could not be criticised for doing so. Should the witness thereby lose the benefit of any immunity because the amendment is adverse to the interests of the party who relies on the expert's original advice? On the facts was Mr Harrison's affidavit a genuine correction of a priorinaccuracy?[54] The allegation is made in the present case that Mr Harrison knew that the material statements in his affidavit were false. If they were false, then that may reasonably militate against the availability of the immunity.62 For this reason as well we consider that it is undesirable to engage with the important issue of principle on the basis of assumed facts.[55] The lack of any binding determination of the extent of immunity in relation to expert witnesses and the factual complexities which this case presents lead us to the view that this case should not be determined in the context of the strictures of the strike out methodology. Rather, the issues should be evaluated with the benefit of a60 Summary judgment, above n 3.61 High Court Rules, sch 4.62 See [37] above.full factual exploration and a consideration then of what principles should be applied.Disposition[56] The appeal is allowed. The order striking out the first and third causes of action is set aside.[57] The respondents must pay the appellant costs for a standard appeal on a band A basis and usual disbursements. We certify for second counsel.Solicitors:Meredith Connell, Auckland for AppellantMorgan Coakle, Auckland for Respondents