Expert witnesses from John O'Groats to Land's End will be feverishly checking the terms of their professional indemnity insurance following the Supreme Court's ruling in the case Jones v Kaney yesterday. The blanket immunity from suit previously enjoyed by expert witnesses has been lifted, leaving them vulnerable to professional negligence claims from vexed clients dissatisfied with their services.
The Role of an Expert Witness
The role of an expert witness is to provide independent assistance to the court and parties by providing an impartial opinion in relation to matters within their area of expertise. They can win or lose your case. They play an important role in the civil and criminal justice system.
Jones v Kaney – the facts
Mr Jones sustained physical and psychological injuries in a road traffic accident on 14 March 2001, when his stationary motorcycle was struck by a vehicle driven by Mr Bennett. He instructed solicitors to bring a claim against Mr Bennett. In support of his claim for psychological injuries, his solicitors commissioned two medical reports from Dr Kaney, a consultant clinical psychologist. In the ordinary course, an expert report was obtained on behalf of Mr Bennett in support of his defence to the claim, the terms of which conflicted with opinion of Dr Kaney. Consequently, the district judge ordered both experts to hold discussions and prepare a Joint Statement. Following a telephone conference, Mr Bennett's expert prepared a draft Joint Statement which Dr Kaney signed without amendment or comment.
The Joint Statement was detrimental to Mr Jones' claim in that it recorded that his injuries were not of the nature and severity he alleged. Further, it stated that Dr Kaney had found Mr Jones to be deceptive and deceitful in his reporting, which did not accord with the views earlier expressed by her. Mr Jones' solicitors challenged Dr Kaney. Dissatisfied with the explanation tendered by her, they sought permission to change their expert, which the district judge refused. As a result, Mr Jones felt pressured into settling his claim for a significantly lower sum. Aggrieved by the outcome of his claim, he sought redress and instigated proceedings against Dr Kaney alleging negligence.
Decision at First Instance
In support of her application for summary judgment to strike out Mr Jones' claim, Dr Kaney sought to rely on the 2000 Court of Appeal decision in Stanton v Callaghan. In that case, it was ruled that experts enjoy immunity from professional negligence claims arising from their evidence at court or arbitration and also in respect of work preliminary to their giving evidence i.e. expert reports and joint agreements.
Mr Jones' Counsel argued Stanton v Callaghan was no longer good law for the following reasons:
- following the 2002 decision in Hall v Simmons, which generally abolished barristers immunity from suit, the expert immunity rule could no longer stand;
- the expert immunity rule was inconsistent with the right to a fair trial, enshrined by Article 6 of the European Convention on Human Rights (ECHR).
Mr Justice Blake felt bound by the decision in Stanton v Callaghan and therefore ruled in Dr Kaney's favour. However, he observed:
'there is a substantial likelihood that on re-examination by a superior court, with the power to do so, it will emerge that the public policy justification for the rule cannot support it."
Consequently, the case was referred directly to the Supreme Court.
Supreme Court Ruling
Such was the importance of the wider issues at stake, the appeal was heard by a bench of 7 Supreme Court judges. By a majority of 5 - 2, the court upheld the appeal, overturning the ruling at first instance, thereby removing the immunity enjoyed by expert witnesses for more than 400 years.
In arriving at the decision, the majority were agreed that every wrong should have a remedy and any exception to that general rule must be justified in the public interest. They concluded that the protection from immunity afforded to expert witnesses in the past was no longer justified, particularly in light of the decision in Hall v Simmons removing barrister's immunity.
Discussion
Time will tell if the removal of expert witness immunity will lead to a reduction in the pool of experts and an increase in professional negligence claims.
Expert witnesses from all disciplines should take care when accepting instructions to act as expert and should ensure they have the requisite qualifications, expertise, experience and professional indemnity insurance in place before doing so.
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
