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Jones v Kaney, Supreme Court, 30 March 2011

20 April 2011
The issues

Expert evidence – immunity from suit – negligence.

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 Judge struck out the action but granted leave under Section 12(1) Administration of Justice Act 1969 to Appeal directly to the Supreme Court.

The decision

The purpose of the immunity was to ensure that expert witnesses would be willing to provide their services at all and that experts should have the reassurance that if they complied with their obligation to the Court, which was paramount and even superseded their obligations to their client, that they should not be at risk of being sued. For failing to have regard to their client’s best interests. The scope of the immunity was “fuzzy”, but it was clear that if the immunity was to be effective in removing inhibitions regarding what the expert witness was prepared to say at Trial that it must protect him in relation to his expression of views before the Trial.

An expert witness had certain matters in common with an advocate. Each undertook a duty to provide services to the client, which included a paramount duty to the Court and the public which might require the advocate or witness to act in a way which did not advance his client’s case. The advocate had to disclose to the Court authorities that were unfavourable to his client. The expert had to give his evidence honestly, even if this involved concessions that were contrary to his client’s interest.

The immunity had been justified on various bases. Firstly, it had been argued that it would make experts reluctant to testify. There was a lesson to be learned from the position of Barristers. Removal of their immunity had not resulted in any diminution of an advocate’s readiness to perform his duties. It would be wrong to perpetuate the immunity of expert witnesses out of mere conjecture that they would be reluctant to perform their duties to the Court if they were not immune from suit for breach of duty. It had also been put forward that to remove the immunity would result in the diligent expert witness being harassed by vexatious claims for breach of duty.

Where a litigant was disaffected because a diligent expert had made concessions, it would be difficult for him to get a claim against that expert off the ground. It would not be viable without the support of another expert and it would be a rare litigant who had the resources to fund such a claim, who would throw money away on proceedings that he was advised were without merit. The litigant without resources would be unlikely to succeed in persuading lawyers to act on a conditional fee basis. A litigant in person who sought to bring such a claim would be unable to plead a coherent case and would be susceptible to a strike out Application. Again, since Hall v Symons, Barristers had not experienced a flood of such claims from disappointed litigants. For the same reasons it was unlikely that there would be a multiplicity of actions.

No justification had therefore been shown for continuing to hold expert witness immune from suit in relation to the evidence they gave in Court or for the views they expressed in anticipation of Court proceedings and it followed therefore that the immunity should be abolished and that the Appeal would be allowed.

Comments

Both Lord Hope and Lady Hale dissented in strong terms. Lord Hope noted the obvious conflict between the duties that the expert owed to his client and those that in the public interest he owed to the Court and noted that it would be contrary to the public interest for the expert to undertake to confine himself to making points that were in the client’s interest only or to refrain from saying anything to the Court to which his client might take objection. He noted that Lord Phillips had said that he did not see why an expert should be concerned that the performance of his duty to the Court would result in his being sued for breach of duty to his client. This assumption however Lord Hope thought contradicted the justification of the immunity that was extended to expert witnesses generally, which is that there were grounds from time to time for believing that the fear of being sued existed. If Lord Phillips was right then there was some reason to challenge the whole concept of witness immunity. He concluded that the lack of a secure principle base for removing the immunity from expert witnesses and the lack of any clear dividing line between what was to be affected by the removal and what not, added to the uncertainties that this would cause and the lack of reliable evidence to indicate what the effects might be, suggested that the right thing to do would have been to have left matters as they stood. Lady Hale agreed with Lord Hope raising in addition, amongst other matters, the fraught instance of family proceedings and for example the joint instruction by parties of a child psychiatrist to assist the Court. Were such an expert to be potentially liable to the disappointed parent, even though the expert’s principle duty would be owed to the child? She concluded in even stronger terms than Lord Hope that it did not seem self evident that the policy considerations in making the exception to the rule were so strong that the Court should depart from previous authority to make it and that it was irresponsible to make such change on an experimental basis and far better to leave it for consideration by the Law Commission and Parliament.

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