Expert Witness Immunity Removed

As anticipated in our previous Law Now click here the Supreme Court in Jones -v- Kaney has abolished the principle of expert witness immunity from suit in relation to evidence given in civil proceedings. This was a 5 to 2 majority decision handed down on 30 March 2011. The ruling is significant for those who undertake work as expert witnesses, who may now be sued by their clients for breaches of duty committed in the course of all work that they undertake. Previously, the immunity protected experts in relation to work undertaken in proximity to court hearings. The practical impact of the decision remains to be seen. It is certainly likely to lead to upward pressure on professional indemnity premiums for expert work. Whether it will lead to a surge in satellite litigation when disappointed litigants turn to their former experts to recoup losses is a matter of speculation. We predict that such cases will be relatively rare. We also consider that the discouragement of underperforming experts is a welcome development.

Background

A consultant clinical psychologist was retained to act as an expert witness for the claimant in a personal injuries claim. Following a telephone discussion between the experts in the case, the claimant's expert signed a joint statement prepared by the opposing expert, without making any comment or amendment. She later said that the joint statement did not reflect what she had agreed in the telephone discussion but that she had felt 'under pressure' to sign it. As a result of the damaging nature of admissions in the joint statement, the claim was settled for a sum that was considerably less than would have been the case if the claimant's expert had not signed the joint statement in the terms that she did. The claimant brought proceedings against the expert. The expert relied upon the principle that an expert witness in civil proceedings is immune from being sued. At first instance the expert was successful and the claim was struck out. The issue came before the Supreme Court as a result of a 'leap-frog' certificate enabling the claimant to bypass the Court of Appeal in its appeal against the strike out decision based upon the immunity rule.

Supreme Court Decision

Lord Phillips' leading judgement framed the key question to be addressed as follows: does public policy justify holding an expert witness immune from liability in negligence in relation to the performance of his duties in that capacity? The onus was on the...