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APRIL 2011

The very recent case of Jones v Kaney [2011] decided by the Supreme Court has abolished the long-standing immunity from suit that expert witnesses have enjoyed for hundreds of years.  The effect of the Supreme Court’s decision is that expert witnesses may now be sued for professional negligence and/or breach of contract by their clients in relation to evidence the experts give in court, and/or for views they express in anticipation of court proceedings.

Historical Position

Clients were not able to sue their expert witness for anything said in court even if the expert’s evidence was negligent or otherwise incorrect. The rationale behind expert witnesses’ immunity from suit was that an expert may be reluctant to provide evidence if there was a risk he could be sued by his client.

The Court of Appeal considered this issue in Stanton v Callaghan [1999] and decided that experts’ immunity from suit extended to work done in preparation of a joint experts’ statement following a meeting with the expert from the opposing party, and any revisions made in their own report as a result of such a meeting.

It was evident that the old rule gave rise to possible unfairness as litigants might compromise their claims based upon the opinions of expert witnesses who, if they get their opinion very wrong, would face no liability whatsoever.

Jones v Kaney

Mr Jones was hit by a car and commenced personal injury proceedings against the driver.  Mrs Kaney, a clinical psychologist, was instructed to prepare a report for use in the litigation.  Mrs Kaney then signed a joint experts’ report which recorded that she agreed that Mr Jones had exaggerated the extent of his injuries.  Consequently Mr Jones reached a financial settlement on terms which were much less favourable to him than they otherwise would have been.  Mr Jones brought a claim for negligence against Mrs Kaney, which she attempted to have struck out on the basis she enjoyed expert witness immunity from suit.  The court felt bound by the decision in Stanton v Callaghan and decided in favour of Mrs Kaney, but allowed Mr Jones permission to appeal directly to the Supreme Court.

The Supreme Court (by a majority 5:2) held that there was no justification for the assumption that an expert witness would be discouraged from providing their services if there was a risk of their being sued for breach of duty.  Additionally, the Supreme Court held that there is no conflict between the duty an expert witness owes to the court and to his client.

Practical considerations

The effects of the decision in Jones v Kaney will take some time to be fully ascertained.  One obvious practical consequence is that expert witnesses may well increase their charges in order to cover any increased costs they may incur in respect of professional indemnity insurance.  Expert witnesses may also include more caveats in their reports, but they will hopefully also be forced to produce reports which are prepared with due care and attention which the Court will find valuable in assisting it decide cases.

Nigel Adams
Partner

If you would like any further information about the issues raised in this article please contact Nigel Adams (nadams@gdlaw.co.uk), or any other meber of Goodman Derrick LLP's dispute resolution team on 0207 404 0606.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice.