Expert witnesses no longer immune from suit under UK law: Jones v Kaney

Key Points:

A recent UK decision has abolished the long-standing protection given to experts against immunity from legal suit arising out of giving evidence or participating in civil proceedings.

The UK Supreme Court decision of Jones v Kaney [2011] UKSC 13 has removed the immunity from suit expert witnesses have traditionally enjoyed in the UK in giving evidence and providing advice in civil proceedings. The decision does not directly impact on expert witnesses in Australia, but experts and those giving instructions to experts should be aware of the reasons for the decision lest the decision reignite the debate about the retention of an expert's immunity.

The origin of expert witness immunity derives from what is known as the "chilling effect": experts would be reluctant to give evidence in court contrary to their client's interests if there were a risk that clients can later sue them.

Jones v Kaney arose out of a personal injury action where a psychologist signed a joint experts' statement that conflicted with her earlier opinion. As a result, it was alleged that the sum of money the claim settled for was significantly less than could otherwise have been achievable.

At first instance, the claim was struck out on the basis of the long-standing rule giving an expert immunity from suit. On appeal, the majority of the UK Supreme Court overturned that decision, declaring that...