Is Expert Witness Immunity About To Be Abolished? A Case Note On 'Paul Wynne Jones v Sue Kaney' [2010] EWHC 61 (QB)

In Paul Wynne Jones v Sue Kaney, Mr Jones alleged that Ms Kaney provided negligent opinion evidence when she acted as Mr Jones' psychiatry expert in a previous personal injury claim arising out of a road traffic accident. Ms Kaney applied to have Mr Jones' claim struck out on the grounds that, as an expert witness, she enjoys an immunity from suit in respect of such matters.

The expert witness immunity is based upon Court of Appeal authority, Stanton v Callaghan [1999] 2 WLR 745. Mr Jones' case is that Stanton v Callaghan is no longer good law for two reasons: (1) that the immunity can no longer survive in light of the House of Lords' decision in Arthur Hall v Simons [2000] 3 WLR 543 (in which a barrister's immunity from suit was abolished); and (2) the expert witness immunity is inconsistent the right to a fair trial enshrined by Article 6 of the European Convention on Human Rights.

At first instance, before Blake J, Ms Kaney's argument succeeded. The Judge considered himself to be bound by Stanton v Callaghan. The Judge therefore struck out Mr Jones' claim.

However, in his judgment, the Judge also stated:

"However, although I conclude that it remains good law, I have doubts as to whether [Stanton v Callaghan] will continue to remain so for the reasons canvassed by the Claimant and the discussion summarised above. I conclude that there is a substantial likelihood that on re-examination by a superior court, with the power to do so, it will emerge that the public policy justification for the rule cannot support it."

The Judge therefore granted a certificate, pursuant to section 12 of the Administration of Justice Act 1969, to enable the Supreme Court to consider whether it would wish to grant leave to appeal to it, without the need for the appeal to be heard first by the Court of Appeal.

All eyes are now on the Supreme Court to see whether it will grant permission to appeal. If permission is granted, there is a real risk that the immunity may well be abolished, or at least severely curtailed. Indeed, this author argued for its abolition over seven years ago.

Please read article below which won first prize in the 2002 Bar Law Reform Essay Competition.

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THE LIABILITY OF THE EXPERT TO THOSE WHO APPOINT HIM

"What if the expert gets it wrong?"

The Present Position

Experts have a limited immunity from proceedings for professional negligence. This immunity extends to evidence given by the expert in court or arbitration and to work which is preliminary to giving such evidence. The production or approval of his or her report would thus be protected, as would the content of the experts' joint agreement: Stanton v Callaghan [1999] 2 WLR 745. The immunity does not extend to work done for the principal purpose of advising the client as to the merits of their case, particularly if proceedings have not been started, or to advice as to whether the expert is qualified to advise at all: Palmer v Durnford Ford [1992] QB 483.

The public policy arguments which have been relied upon to...