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  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 public policy no longer justified retention of the immunity in civil proceedings.
It is important to note that the decision does not affect the immunity of lay witnesses, who provide their services to the court voluntarily, nor the privilege that an expert witness has from claims for defamation arising out of the conduct of legal proceedings.
A contemporary look at expert's immunity
The Court in Jones v Kaney re-examined the reasons for maintaining an expert's immunity from liability in negligence, with the majority choosing to consider the rule in light of present day conditions.
It was agreed that the immunity could not be retained on the basis of longevity alone; some exceptional public policy reason needed to exist for the courts to continue to deny a victim of a wrong their rightful remedy.
The basis for the decision was as follows:
- The risk of an expert witness being sued for conduct related to court proceedings would not provide any greater disincentive for that expert to offer their services for such a purpose, than it would to any other person providing a professional service.
- Reluctance to give evidence contrary to a client's interests or being influenced to distort evidence would in any case expose a witness to prosecution for perjury and disciplinary proceedings for unprofessional conduct.
- It was unlikely that abolishing the immunity would expose an expert witness to vexatious claims by disgruntled litigants, noting that barrister's immunity from suit for negligence has been abolished since 2001 (in the decision of Arthur J S Hall & Co v Simons  1 AC 615) and that this did not result in a flood of unjustified claims against advocates. The expert witness's role was likened to that of an advocate in that their paramount duty is to the court and not the client.
- If an expert witness expresses an honestly held view, the fear of being pursued by a disgruntled party for an action in negligence is unlikely, as claims with no professional basis will be struck out by a court.
- Removing the immunity will only serve to encourage expert witnesses to exercise greater care in the preparation of their evidence and in the initial advice they provide to their clients regarding the merits of their case.
What does this mean in Australia?
It is uncertain whether the abolition of immunity in the UK will reignite the debate about the need for the Australian judicial system to retain the immunity currently given to expert witnesses.
The courts in Australia have placed particular importance on the finality of judgments and the principle that once controversies are resolved they should not be reopened except in a few, narrowly defined circumstances. This principle was not considered in any detail in Jones v Kaney.
In preserving the immunity of expert witnesses, in Commonwealth v Griffiths  NSWCA 370 the NSW Court of Appeal followed the reasoning of the High Court majority in D'Orta-Ekenaike v Victoria Legal Aid  HCA 12, which reaffirmed the advocate's immunity in relation to suits for negligence for conduct in court and for work performed outside of court affecting the conduct of legal proceedings.
In D'Orta Ekenaike, the High Court examined the history of witness immunity generally, commenting that no action lies against any witness (whether lay or expert) for what they say or do in court (including any out-of-court preparatory steps), regardless of whether their conduct is alleged to have been done negligently or maliciously and deliberately.
The High Court majority held that the "finality of litigation is a fundamental and pervading tenet of the judicial system", stating that a person should not be entitled to a remedy for a wrong if to do so depends upon demonstrating that a different final result should have been reached in earlier litigation.
Due to the different emphasis placed on the reasons for maintaining the immunity of advocates and witnesses in Australia, it is not apparent that these immunities are at risk of being removed due to the UK decision of Jones v Kaney. Nevertheless, in light of the new UK decision there is always the possibility the issue may be presented for discussion in an Australian courtroom.
For this reason, experts should take care not to pitch their views or opinions of their client's case too highly or inflexibly. They should also be able to justify their opinions and review written reports carefully to ensure those reports reflect their true opinions. It is also advisable that experts ensure they have adequate professional indemnity insurance to cover the cost of any proceedings brought against them.
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