UK Supreme Court abolishes 400 year rule

On considering an appeal from the High Court of Justice, by a majority of five to two, The Supreme Court recently overturned the 400 year old rule that an expert witness enjoyed immunity from any form of civil action arising from the evidence that he or she gave in the course of proceedings.

The facts

The issue, which arose in the recent case of Jones v Kaney was whether the act of preparing a joint witness statement is one in respect of which an expert witness enjoys immunity from suit. The issue arose out of a personal injuries action in which the appellant, Paul Jones, had been claiming damages for physical and psychiatric consequences arising from an accident in which he had been hit by a car.

Mr Jones suffered physical injuries, but more significantly he suffered post traumatic stress disorder (PTSD), depression, an adjustment disorder and associated illness behaviour which manifested itself in chronic pain syndrome. As a result, a clinical psychologist, Dr Sue Kaney, was instructed on behalf of Mr Jones to act as an expert witness.

Prior to the issue of proceedings, Dr Kaney prepared a report dated 29 July 2003, in which she expressed the view, inter alia, that Mr Jones was at that time suffering from PTSD. Proceedings were then issued. Liability was admitted soon after leaving only damages at issue.

Upon instructions from Mr Jones' solicitors, Dr Kaney carried out a further examination of Mr Jones and issued a second report dated 10 December 2004. This stated that Mr Jones did not have all the symptoms to warrant a diagnosis of PTSD, but was still suffering from depression and some of the symptoms of PTSD. A subsequent report prepared by Dr El-Assra, a consultant psychiatrist instructed by the defendant's insurers, expressed the view that Mr Jones was exaggerating his physical symptoms. The district judge then ordered the two experts to hold discussions and to prepare a joint statement. The discussion took place on the telephone and a joint statement was duly prepared.

The joint statement recorded agreement that Mr Jones' psychological reaction to the accident was no more than an adjustment reaction and did not reach the level of a depressive disorder of PTSD. It further stated that Dr Kaney found Mr Jones to be deceptive and deceitful in his reporting and that the experts agreed that his behaviour was suggestive of 'conscious mechanisms' that raised doubts as to whether his reporting was genuine.

When asked by Mr Jones' solicitors...

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