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Jones v Kaney, High Court, 21 January 2010

8 February 2010
The issues

Expert evidence – immunity from suit – allegedly negligent expert opinion in personal injury action – whether claim against expert should be struck out.

The facts

The Claimant had a claim in respect of psychiatric injury relating to a road traffic accident which had occurred in March 2001. In May 2003 the Claimant’s solicitors instructed the Defendant, who was a Consultant Clinical Psychologist. An issue arose in the litigation as to whether the Claimant was suffering from PTSD or was exaggerating his injuries, either consciously or unconsciously. The consultant psychiatrist instructed by the Defendant in the road traffic claim took the view that the Claimant was exaggerating his physical symptoms.

In October 2004 a direction was given that the experts hold discussions and prepare a joint statement. A draft of a joint statement was sent to the Defendant by the opposing expert psychiatrist. The Defendant signed the joint statement without amendment or comment. The joint statement was very damaging to the Claimant’s prospects of success in recovering damages for his head injury in the road traffic claim. The Defendant’s signature to the joint statement amounted to an apparently radical change of opinion, both with regard to the diagnosis of Mr Jones’ disorder and with regard to Mr Jones’ honesty. The solicitors acting for Mr Jones investigated why the change had come about. The Defendant expert said that at the time of the discussion with the opposing expert she had not seen that expert’s reports and that the joint statement did not reflect what had been agreed in the telephone conversation but that she had felt under some pressure in agreeing it. Her true view had been that the Claimant was evasive rather than deceptive and that the Claimant did suffer PTSD which had now resolved.

As a result of the joint statement and the fact that the District Judge, on Application, was not willing to agree that she should no longer act as an expert in the RTA proceedings, the matter was settled for a sum that was considerably less than would have been the case if she had not signed the joint statement in the terms that she did. Subsequently, Mr Jones brought proceedings against his previous expert. The Defendant pleaded witness immunity pursuant to the decision of the Court of Appeal in Stanton v Callaghan.

The Defendant applied to strike out the claim.

The decision

Stanton was a successful Appeal by a Defendant against the refusal of a Deputy High Court Judge to strike out a claim. The Defendant was a structural engineer who had been retained to advise in an insurance claim as to the propriety of previous partial underpinning work that had been performed upon the Plaintiff’s house. The claim was brought against him to the effect that his advice was negligent. It had been argued for Mr Jones that Stanton was no longer binding in that the Court of Appeal in applying a principle of absolute immunity to expert witnesses retained by a party in litigation had relied substantially on the advocate immunity principle then articulated in Rondel v Worsley, which had subsequently been overturned by the House of Lords in Arthur J S Hall v Simons and secondly, that the decision in Stanton had preceded the Human Rights Act 1998. It was plain from the European Court of Human Rights in Osman v United Kingdom that blanket immunities preventing Claimants seeking damages in tort might be contrary to Article 6 if they were disproportionate.

Despite Mr Jones’ argument, the Court was satisfied that Stanton v Callaghan remained an accurate statement of the law as it presently stood and was therefore binding. The fact that Human Rights considerations might question some of the policy assumptions behind a previous decision of a superior Court was no basis for concluding that the decision was no longer authoritative. However, there were doubts as to whether the decision would continue to stand for the reasons argued by the Claimant and, on balance, there was a substantial likelihood that on re-examination by a superior Court, it would emerge that the public policy justification for the Rule could not support it. It Stanton was binding on the High Court, it was equally binding on the Court of Appeal. Consequently, the matter needed to be examined by a higher Tribunal and, whilst the Defendant’s Application to strike out would be granted, a certificate would also be granted that the Court was satisfied that the conditions in Section 12(1) Administration of Justice Act 1969 were made out and that this therefore was a sufficient case for an Appeal to the Supreme Court, though whether the Supreme Court would grant leave would be a matter for it.

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