The end of expert witness immunity
On the 30th March 2011 the Supreme Court effectively brought an end to expert witness immunity in their majority decision in the case of Jones v Kaney. This decision means that the immunity from suit for breach of duty that expert witnesses have been afforded for hundreds of years in relation to their involvement in legal proceedings has been abolished.
Mr Jones was injured when his motorcycle collided with a car on the 14th March 2001. He pursued a claim for personal injury and his solicitors instructed Ms Kaney (a clinical psychologist) as an expert witness. She formed the opinion that Mr Jones was suffering from post-traumatic stress disorder (PTSD). The expert witness for the defendant argued that Mr Jones was exaggerating his symptoms and was not suffering from PTSD.
The experts were ordered by the district judge to hold discussions and prepare a joint statement. After discussions took place on the telephone, the expert for the defendant prepared a draft joint statement which was damaging to Mr Jones’s claim as it indicated that he was not suffering from PTSD and that he was deceptive and deceitful in the way he communicated. Ms Kaney signed the joint statement without comment or amendment.
Ms Kaney subsequently sought to argue that the joint statement did not reflect the discussions which took place on the telephone. She stated that Mr Jones had initially suffered from PTSD but had now recovered and that he was evasive rather than deceptive. The district judge did not permit any amendments to the statement to reflect this.
Mr Jones brought a claim against Ms Kaney on the basis that the joint statement she signed was prejudicial to his case. He argued that as a direct consequence of her actions he was forced to settle the underlying personal injury claim for significantly less than he might otherwise have been able to secure from the defendant.
The High Court struck out the case against Ms Kaney on the basis that a previous Court of Appeal decision (Stanton v Callaghan) had set out that experts were entitled to immunity in such cases. However, under section 12 of the Administration of Justice Act 1969, the judge in the Kaney case granted a ‘leapfrog certificate’ to appeal to the Supreme Court on the grounds that the case involved a point of law of general public importance.
The Supreme Court held by a majority of 5-2 that expert witnesses involved in legal proceedings were no longer entitled to immunity from being sued in the civil courts. (It is worth noting that this does not extend to the absolute privilege expert witnesses are entitled to in relation to claims for defamation.)
The central argument put forward for maintaining the status quo was that the risk of being sued would discourage an expert witness from giving full and frank evidence in accordance with his duties to the court when to do so would conflict with the separate duty of care owed to the client. Lord Phillips, President of the Supreme Court dismissed this argument noting that ‘in so far as a witness may be tempted to trim his sails to suit his client’ that the risk of disciplinary proceedings or a wasted costs order should act as sufficient deterrent.
Lord Kerr went further, stating that ‘there is nothing to support the assumption that conscientious witnesses...would behave discreditably by modifying their opinions from those they truly held because they feared that an aggrieved client might unwarrantably seek redress against them.’
The minority of the Court felt that the matter should more appropriately be considered by the Law Commission and Parliament. They suggested that in some instances where, for example, the expert was jointly appointed or court appointed, instructions might be received from several parties and the boundaries of the duties of the expert might become blurred. They were also concerned that the abolition of immunity would discourage experts from acting in some specialist areas. Furthermore, it was argued that in some instances a disappointed litigant might, without justification, seek to blame an expert for their lack of success.
It remains to be seen whether the fears of the minority of the Court will be realised.
The future and the implications of the decision
Most commentators do not believe that there will be a flood of litigation, citing the fact that the abolition of advocate immunity in 2002 did not result in a rush of claims against advocates. Indeed, many see the decision as a positive step in both discouraging experts in being too ‘enthusiastic’ in their views and generally encouraging a higher degree of professionalism amongst experts.
Experts should, however, ensure that they have appropriate professional indemnity cover in place. Many will already have cover in place under company policies but insurers are likely to ask more detailed questions about the scope and type of work being carried out and could consequently increase premiums.
It is possible, subject to the relevant limitation period, that claims could be brought in respect of expert witness work carried out several years ago. Experts might therefore wish to consider notifying their insurers of past cases where they believe they could have an exposure and there is the possibility that a client might bring a claim against them.
Experts should also consider attempting to agree contractual limits in respect of their liability to clients for claims brought against them for negligence and/or breach of contract. The effectiveness of any limitation on liability will depend partly on whether the provisions of the Unfair Contract Terms Act 1977 have been complied with. The reasonableness of any contractual limitations will also be a factor.