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Supreme Court ends experts immunity: Jones v Kaney

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 Kaneys initial report suggested that Mr Jones had symptoms of post-traumatic stress disorder (PTSD). However, the defendants 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 defendants 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 Kaneys 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 Bars 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 clients 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 experts 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 Browns 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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