Supreme Court Abolishes The Immunity Of Expert Witnesses

Expert witnesses will no longer have the protection of immunity from a claim against them in negligence. In the decision of Jones v Kaney, the Supreme Court has abolished the immunity, the origins of which date back to 1585.

The decision entirely removes the protection previously afforded to expert witnesses in civil and criminal cases for out of court statements (ie experts' reports) and evidence given in court. As a result, expert witnesses will have to consider their actions and advice against the backdrop of possible future claims being made if they act below the required standard.

Background – the facts of the case

Mr Jones was injured when he was knocked down by a driver who was drunk, uninsured and disqualified from driving. As a result, Mr Jones suffered from psychological injuries.

Mrs Kaney was instructed as an expert witness (a consultant clinical psychologist) and reported in July 2003 that Mr Jones was suffering from PTSD. Proceedings were commenced and liability was admitted by the other side. After it was ordered that a joint experts' report be prepared, Mrs Kaney conducted a meeting over the phone with the other expert, retracted the view that Mr Jones was suffering from PTSD and contended that he had exaggerated some of his symptoms. As a result, Mr Jones was forced to settle for a significantly lower sum than if Mrs Kaney had not signed the joint report.

Mr Jones subsequently brought a claim against Mrs Kaney for professional negligence. Mrs Kaney pleaded that she was immune and that the claim should be struck out. The case ultimately reached the Supreme Court.

The decision

Most disputes settle before they reach court and so the principal effect of the previous immunity of experts was to prevent the client from suing for breach of duty where the expert's negligence was alleged to have adversely affected a decision to settle a case. This offended against the principle that where there is a wrong there must be a remedy. The starting point for the Supreme Court therefore had to be that the existence of any immunity had to be clearly justified.

It was concluded (by majority) that there was no compelling justification for the immunity to continue and that it should be abolished. Some of the majority pointed to the similarity between the expert's duty and an advocate's duty to their clients (for some time barristers also held the same immunity from claims) and were very much influenced by the abolition of the advocates' immunity...