As readers will be aware from our alert on 30 March 2011, the UK Supreme Court handed down a landmark judgment that day in the case of Jones v Kaney [2011] UKSC 13 (the judgment). The effect of the judgment (by a majority of five to two judges) is to abolish an expert witness's immunity from suit with respect to testimony given in court or with respect to work intimately connected with the conduct of court proceedings in the UK. In this article we take a look at issues that arose in the case and what the judgment might mean for litigants and experts in civil proceedings in Hong Kong.

What are the key points and likely practical lessons?

  • In court proceedings in the UK experts no longer enjoy immunity from suit for negligence claims arising out of their report or the evidence they give in relation to court proceedings.
  • Claims against experts in respect of acts or omissions that took place before the judgment are actionable subject to rules relating to time bar (limitation periods).
  • Going forward, successful claims against experts in the UK are likely to be rare. If an expert expresses an opinion that is honestly held and within the range of reasonable expert opinion, he/she will have discharged his/her overriding duty to the court and will not be liable merely because that opinion is adverse to his/her client's case.
  • Experts, just like witnesses of fact, continue to enjoy protection against claims for defamation arising out of their evidence given in court.
  • Just like some accountants and larger law firms, experts are likely to use this opportunity to review their terms of engagement and consider whether they should try to exclude or limit their liability as a matter of contract (insofar as is consistent with local legislation).
  • Experts that do not have professional indemnity insurance should have, whether as part of a corporate policy or an individual bespoke policy. It is only a matter of time before a challenge to expert immunity is made in Hong Kong. If such a challenge was successful (which is by no means certain) then claims could be brought in respect of breaches of duty that took place before a change in the law in Hong Kong.

    Accordingly, experts retained in court proceedings in Hong Kong should also have professional indemnity insurance cover.
  • Insurers are likely to ask more questions in proposal forms for professional indemnity insurance cover regarding whether an insured undertakes expert work and to what extent.
  • Professional indemnity insurance premiums may increase to reflect the additional risk.

What was the immunity enjoyed by experts in court proceedings in UK?

Previously experts in UK court proceedings had enjoyed immunity from lawsuits with respect to the evidence they gave at trial or with respect to the opinions they expressed in connection with court proceedings. That immunity had existed for many years and was justified on the basis that (amongst other things) an expert witness should be free to give full and frank evidence to the court, without fear of vexatious lawsuits from disgruntled litigants. The immunity was never absolute. For example, in English proceedings, experts have no immunity with respect to professional disciplinary proceedings (in which their fitness to practice is challenged – Meadow v General Medical Council [2007] QB 462) and they can be liable in negligence with respect to their advice as to the merits of a party's claims. The immunity also never protected experts (or witnesses of fact for that matter) against liability for contempt of court or perjury.

How did the issue come before the Supreme Court?

In short, Jones retained Kaney as an expert in a personal injuries claim that he had commenced. Although Kaney's initial opinion was favourable to Jones, she later signed a joint statement prepared by the opposing expert that contained conclusions damaging to Jones' claim. Jones' claim was settled for considerably less than otherwise would have been the case. Jones sued Kaney for alleged negligence in signing the joint statement, which he claimed (amongst other things) did not reflect what Kaney actually thought during a joint conference with the other expert.

At first instance, Kaney was successful in having Jones' claim against her struck out on the basis that, as things stood under English common law, she enjoyed immunity (Stanton v Callaghan [2000] 1 QB 75). However, the judge considered that there were strong grounds to question whether that authority could stand. Given the importance of the issues involved, the case was appealed direct to the Supreme Court (thereby "leapfrogging" the English Court of Appeal).

Why did the Supreme Court decide to remove the immunity?

The judgment contains an interesting discussion of the relevant case law. In essence, the majority decision of the Supreme Court was driven by policy considerations. The majority started from the interesting premise that, although expert immunity was long established under English law, it was for the expert (Kaney) to justify the immunity pursuant to which she sought protection. The judgment is long. However, two principal arguments to support the immunity were considered and dismissed by the majority.

Without the immunity experts might be discouraged from providing their services

The majority did not appear to be impressed by this. Indeed, not surprisingly, there did not appear to be any evidence to support such a proposition. Given that expert witnesses owe a duty of care to those that retain them, the majority did not see any justification for treating them differently to other professional service providers who were at risk of being sued if negligent.

Crucially, in the landmark case of Hall v Simons [2002] 1 AC 615, the House of Lords (as it then was) removed the limited immunity that advocates enjoyed with respect to work conducted in court in English proceedings or with respect to work intimately connected with the preparation for court proceedings. The majority was of the view that since that decision advocates had not shied away from court work in England, nor had there been an escalation of lawsuits against them there.

Without the immunity experts might feel constrained in what they can tell the court

An argument was advanced that without the immunity experts might feel less willing to express opinions that were adverse to their clients' interests. The majority of the Supreme Court disagreed with this argument. On the contrary, the majority considered that, if anything, experts were likely to be more careful in preparing their reports and in giving evidence (and this was a good thing).

What is the position regarding expert immunity in court proceedings in Hong Kong?

Expert immunity has not (to date) been successfully challenged in the courts in Hong Kong. Until the judgment of the Supreme Court, it was traditionally considered that experts enjoyed such immunity in Hong Kong. It is worth remembering that, as stated above, the immunity is not absolute.

What is the relevance of the judgment in Hong Kong?

This is difficult to say and, at times like this, one wishes one had the foresight of a clairvoyant and the wisdom of King Solomon. There is bound to be some discomfort amongst experts in Hong Kong. The judgment is likely to be "persuasive" for a variety of reasons. First, some of the policy considerations reflected in the decision of the majority of the Supreme Court are difficult to argue with. Second, much of the common law in Hong Kong, in matters such as these, has its roots in English common law given the historical connection between the two.

However, that is not to say that if the matter of expert immunity came before the courts in Hong Kong for consideration that the courts there would automatically follow the judgment of the Supreme Court. Much might depend on whether barristers' limited immunity from suit still existed at the time. It is clear from the judgment that the majority of the Supreme Court considered that it was difficult to justify the continued existence of an expert's immunity given that an advocate's limited immunity from suit had been abolished in England in 2002.

Barristers' limited immunity survives (for now) in Hong Kong. The importance of a small but independent Bar to Hong Kong's rule of law suggests that any attempt to undermine barristers' immunity will be vigorously defended both in the courts and, possibly, in Hong Kong's Legislative Council (in which prominent members of the Bar have traditionally sat as elected or representative members). These local circumstances should not be underestimated. Interestingly, one of the dissenting judges in the Supreme Court described the manner in which expert immunity was being removed by the Supreme Court as "irresponsible" and suggested that the matter was more for the Law Commission to consider and, if thought appropriate, Parliament (the legislature in the UK).

Furthermore, any attempt to remove either experts' or barristers' immunity from suit will raise important issues of great public importance in Hong Kong. Therefore, any court proceedings in which such matters are raised would ultimately be determined by an appellate court and, probably, the Court of Final Appeal (unless settled beforehand). The Court of Final Appeal enjoys a good reputation and a high profile and invites eminent judges from other common law jurisdictions to join it. Some of those overseas judges hail from the Supreme Court in the UK or the High Court of Australia. The courts in Hong Kong are entitled to and do refer to case law from other common law jurisdictions (as a matter of convention and pursuant to Article 84 of Hong Kong's Basic Law). It is interesting to note that in Australia advocates' limited common law immunity from suit is still preserved, primarily on the basis of a need for finality in litigation (D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1). This is an interesting point in the context of Hong Kong; a small jurisdiction with a number of active litigants in person.

As and when the issues of barristers' or experts' immunity from suit are tested in the courts in Hong Kong (and it is only a matter of time before they are) it is too close a call for now to predict which way the courts will go. Ultimately, it is quite possible that the two will stand or fall together.

Like any other self-respecting lawyers, a case in which these immunities are raised is a case in respect of which we would like to be instructed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.