expert's immunity ends
Supreme court ends expert’s immunity
30 March 2011
In a decision handed down today, the Supreme Court has swept away
blanket immunity for expert witnesses.
As a result, expert witnesses are no longer immune from suit in
respect of liability for negligence in the performance of their
duties when giving evidence in court or for views they express in
anticipation of court proceedings.
Summary of the facts
In Jones v Kaney, Mr Jones instructed Dr Kaney as an
expert in relation to a psychiatric injury he claimed to have
suffered as a result of a car accident.
Dr Kaney’s initial report suggested that Mr Jones had symptoms
of post-traumatic stress disorder (PTSD). However, the defendant’s
expert concluded that he was exaggerating his symptoms and, as a
result, the court ordered that the experts meet and prepare a joint
statement.
After a telephone discussion the defendant’s expert prepared a
statement and Dr Kaney signed it without making any amendments. The
report stated that Dr Kaney had found Mr Jones to be “very
deceptive and deceitful” and that he did not have PTSD.
Consequently, the claim was settled for a much lower sum than had
originally been envisaged.
When Mr Jones’ solicitors questioned Dr Kaney, it became clear
that the statement did not reflect what had been agreed and that
her true view was that, although he had been evasive, he had been
suffering from PTSD.
Mr Jones issued proceedings against Dr Kaney on the basis that
she had been negligent in not ensuring that the joint statement
reflected her views. Dr Kaney pleaded expert witness immunity from
suit, in accordance with the Court of Appeal decision in
Stanton v Callaghan (2000) and applied for the claim to be
struck out. At first instance the claim was unsuccessful but, as
issues of public policy were concerned, the court gave a
certificate for leave to appeal direct to the Supreme Court.
Mr Jones’ submission
Although Roger Ter Harr QC, appearing for Mr Jones, made it
clear that he was not concerned with establishing more than the
issue of whether the act of preparing a joint statement enjoys
immunity from suit, his submissions raised further issues as to
whether expert immunity should be abolished in its entirety. His
primary submission was that Stanton v Callaghan was no
longer binding law as it preceded s6 Human Rights Act 1998 which
states that the court must act compatibly with the European
Convention on Human Rights. As one of the Convention Rights is the
right to a fair trial, he argued that the Stanton v
Callaghan decision was no longer binding but that even if it
were, that it should be reconsidered taking into account the
judgment of the European Court in Osman v The United
Kingdom (another case in which blanket immunities were
criticised).
Dr Kaney’s arguments
A number of submissions, in support of upholding the immunity,
were made by Patrick Lawrence QC on behalf of Dr Kaney, which were
dealt with in the various judgments. The main concern was that
experts might, in the future, be reluctant to give evidence freely
if there was a risk of being sued by a disappointed litigant. The
scenario described in the submissions was one of experts failing to
give full and frank evidence for fear of what might follow.
The decision
The Court abolished immunity from suit for experts but confirmed
that experts, as in the case of other witnesses, continue to be
able to rely on the defence of absolute privilege in answer to any
claim for defamation arising out of anything said by them in the
court process.
The majority of the Court were influenced by the effect of the
House of Lords decision in Hall v Simons [2001], which
abolished immunity from suit for advocates, taking the view that
the decision had not diminished the Bar’s readiness to perform
their duty to the court, nor had there been a proliferation of
vexatious claims against barristers in respect of their performance
at court or their work closely related to the court hearing.
Indeed, Lord Brown envisaged that the quality of expert evidence
might be improved by the removal of the immunity, anticipating that
experts will have a "sharpened awareness of the risks of
pitching their views of the merits of their client’s case too high
or too inflexibly lest these views come to expose and embarrass
them at a later date."
Comment
There will clearly be concern that this decision will lead to an
increase in claims against professionals who act as expert
witnesses. Claims which would previously have been struck out at an
early stage will now need to be looked at more carefully. The value
or truth of the evidence will need to be analysed all over
again.
On a more positive note insurers who are also exposed to the
underlying claims which are the subject matter of expert's reports,
might be able to look forward to dealing with them against the
backcloth of better quality evidence (and rather fewer ‘hired gun’
type reports arrayed against them) certainly if Lord Brown’s hopes
are fulfilled.
As one expert said to us earlier today:
"This decision brings experts into the real world to some
degree. It should not impact upon their role of providing objective
and independent assistance for the benefit of the court. The
existence of immunity from civil action ought not to have been an
influence on the work or approach of any expert properly carrying
out their duties".
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