The Supreme Court has now finally brought to an end the age-old rule that expert witnesses were immune from proceedings in negligence in relation to the evidence they gave in court or the views they expressed in anticipation of court proceedings.
This outcome had generally been anticipated ever since the first-instance decision in Jones –v- Kaneylast year, where the judge had to strike out Mr Jones’s case in negligence against Ms Kaney because he was bound by Court of Appeal authority in the 1998 case of Stanton –v- Callaghan that stated that the immunity of an expert witness extended to protect him from liability for negligence in preparing a joint statement for use in legal proceedings.
The judge in Jones –v- Kaney, Mr Justice Blake, decided that the case involved a point of law of general public importance and therefore granted a “leapfrog certificate” allowing Mr Jones to appeal directly to the Supreme Court.
The facts of the case were that Mr Jones was knocked off his motorbike by a drunk driver in 2001 and suffered serious injury. Liability was admitted by insurers and the case proceeded on quantum. Part of Mr Jones’s claim related to the psychiatric consequences of the accident and he obtained a report from Ms Kaney, a consultant clinical psychologist. Ms Kaney reported that Mr Jones was suffering, amongst other things, from post-traumatic stress disorder.
As the case progressed, insurers duly appointed their own consultant psychologist and the two experts were directed to hold discussions and prepare a joint statement. Ms Kaney signed the joint statement despite the fact that she hadn’t read it properly and just assumed that it reflected the discussions that had taken place. In fact, the joint statement contained views that were extremely damaging to Mr Jones’s case, including that he was deceptive and deceitful in his reporting of his condition.
Mr Jones felt constrained by the joint statement to settle his claim for significantly less than he would have done and he issued proceedings against Ms Kaney in negligence. Those proceedings were struck out because of the existing Court of Appeal authority.
Surprisingly, an expert’s immunity from proceedings in negligence has never been challenged in these circumstances before. It had simply been accepted that the immunity that applies to witnesses of fact applied equally to protect an expert from being sued in negligence by his client. The immunity of expert witnesses goes back over 400 years to a time before the modern law of negligence and before it became common for experts to offer their services in this way.
The Supreme Court had to decide whether the immunity of experts continued to be justified in the public interest.
Ms Kaney’s lawyers argued that, if experts were to be at risk of being sued in negligence, they’d be discouraged from providing expert witness services at all. The court, however, could see no reason why experts should be any more discouraged from providing their services than any other professional providing a service.
It was further argued on Ms Kaney’s behalf that immunity was required in order to ensure that the expert performed his duty to the court to give honest evidence even if it conflicted with his client’s case. If the expert were to be liable in negligence, it was argued, he would be apprehensive about doing so. The court rejected this argument. Whilst an expert might be reluctant to admit that he’d changed his mind about the strength of his client’s case since his first advice, that reluctance was less likely to be caused by a fear of being sued in negligence than by a natural reluctance to admit to having made a mistake. The same argument had been advanced on behalf of barristers, yet removal of their immunity in 2000 had not resulted in any lessening of their willingness to perform their duty to the court.
The Supreme Court further doubted that the removal of immunity from expert witnesses would lead to a proliferation of vexatious claims against them. They decided that the immunity that expert witnesses had enjoyed in relation to their participation in legal proceedings should be abolished.
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