Expert Immunity Abolished

29 April 2012

Expert witnesses play a crucial role in litigation, however, in the decision handed down by the Supreme Court in Jones v Kaney (1) on 30 March 2011, a 5 to 2 majority held that there was no justification for continuing to hold expert witnesses immune from suit. In litigation cases the courts often rely heavily on expert witnesses, particularly in cases where there are complex technical issues at hand. The position before this landmark decision was that expert witnesses were immune from any suit in respect of any work carried out in relation to the trial. It was held in Stanton v Callaghan (2) that it was in the public interest to encourage full and frank and honest discussion between experts and therefore immunity was justified. The primary duty of the experts is to the court, and it was felt that in order to give experts the freedom to make proper concessions they should not fear being sued as a result of their testimony. Ms Kaney, a clinical psychologist, was instructed to prepare an expert report in relation to a claim by Mr Jones for injures sustained in a road traffic accident. The initial report by Ms Kaney suggested a diagnosis of post-traumatic stress disorder, however, she wrongly signed a joint statement recording that she agreed with the defence expert that Mr Jones had exaggerated his symptoms. The statement proved damaging to the claim and as a result the matter was settled for a much smaller sum. Mr Jones issued proceedings for negligence against Ms Kaney, whose defence was a plea of witness immunity in accordance with the decision in Stanton v Callaghan. Ms Kaney argued that if the immunity for expert witnesses was removed it would render experts much more reluctant to provide their services out of fear of being sued by their clients. The case was struck out on the basis that Stanton v Callaghan was binding on the court; Mr Jones then proceeded to appeal against the decision. The appeal was allowed as the Supreme Court moved to abolish expert immunity in the courts. It was held that there was no justification for the assumption that if experts could be sued for breach of duty they would be discouraged from providing services. In the modern age all who provide professional services that involve a duty of care are at risk of being sued for that breach of duty, and customarily they insure against that risk. Further, the justification that immunity was necessary to ensure the expert performed his duty to the court, and gave his honest opinion even if that proved adverse to his client's case, was not made out. It was felt that a witness of integrity faced with having to change his view would do so. It followed that the immunity from suit for breach of duty that expert witnesses had enjoyed in relation to their participation in legal proceedings should be abolished, Stanton v Callaghan was overruled. (1) [2011] UKSC 13 (2) [2000] QB 75 • For additional information please contact: Alexandra Dean of Gepp & Sons. The above is not legal advice; it is intended to provide information of general interest about current legal issues.