UK: The Insurance Lawyer - Jones v Kaney Decision

Last Updated: 4 July 2011
Article by Katie Papworth

An end of expert witnesses immunity from suit

On Wednesday 30 March 2011 the Supreme Court handed down its long awaited judgment in the case of Jones v Kaney in which it abolished expert witnesses' immunity from suit in all civil proceedings.

Background

Expert's immunity is a long standing principle of English law with roots as far back as 1585. The justification for immunity has traditionally centred on public policy issues, including the need to ensure that witnesses are able to give their evidence freely and in accordance with their duties to the court.

The High Court Decision

The underlying claim was brought by Mr Jones in April 2009 for negligence against Dr Kaney, a clinical psychologist whom he had instructed as an expert in a personal injury claim. Dr Kaney applied to the High Court for summary judgment that the claim should be struck out as she was an expert and thus immune from suit. Blake J struck out the claim but recognised that this was an important and antiquated point of law which should be addressed and granted a 'leapfrog' appeal to the Supreme Court. The Supreme Court's judgment was handed down on Wednesday.

The Supreme Court Decision

The Supreme Court, by majority of 5 to 2, allowed the appeal by Mr Jones and has therefore abolished expert immunity. Accordingly, the underlying negligence claim between Mr. Jones and Dr. Kaney will now be heard in the High Court.

Analysis

The Supreme Court's decision raises a number of interesting legal issues, some of which were addressed by the Supreme Court in their judgment.

  • Reluctance to testify

    One of the reasons why experts have been traditionally protected from suit is so as to allow an expert to speak readily and truthfully at court without fear of suit. Lord Phillips, giving the leading judgment, addressed this issue and challenged the justifications for immunity on this basis. Indeed, he believed that there can be no justification for experts to be immune for the assumption that experts would be reluctant to testify through fear of being sued.

    When considering if experts would still give full and frank disclosure to the court in accordance with their overriding duty as set out in the Civil Procedure Rules at part 35.3, Lord Phillips compared expert witnesses to advocates (whose immunity was abolished in 2001) and stated that the 'removal of [advocates] immunity has not, in my experience, resulted in any diminution of the advocate's readiness to perform that duty'. He further stated that an expert should not be presented with the situation whereby he is unwilling to give information for fear that this is adverse to his clients interest as 'there is no longer any scope, if indeed there ever was, for contrasting the duty owed by an expert to his client with a different duty to the court'.
  • Vexatious claims

    It has long been mooted that removing an expert's immunity could result in an influx of vexatious claims by disappointed litigants. Lady Hale, amongst those dissenting, recognised that 'the major concern is about the effect on disappointed litigants'. However Lord Phillips again made a comparison to the removal of advocates' immunity and commented that he was not aware of an influx of claims from disappointed litigants following this and thus doubted whether the removal of immunity in this instance would lead to a 'proliferation of vexatious claims'.

    Similarly Lord Phillips did not believe that there was a risk of repeated litigation from defendants who, having failed to challenge conviction on appeal, would claim against experts.
  • Increasing the cost of litigation?

    As a result of this decision, and the new risks that an expert will ultimately face when instructed, it is possible that experts will increase the fees that they charge so to as reflect this added risk. The role of the expert in litigation is an essential one; however, the increased cost is likely to be a deterrent for those litigants who wish to limit the costs of litigation. The decision is therefore potentially at odds with the Government's recent response to Lord Jackson's report in which the reduction of the costs of litigation was central.
  • Insurance issues

    The decision is likely to have a considerable impact on professional indemnity insurers who will be keen to ensure that premiums are suitably fixed so as to cover this additional risk. In addition, those individuals who regularly act as an expert may wish to ensure that their employment contract allows for them to act as expert in the course of their employment so as to ensure that their employer's insurance policies provides cover for the work that they do as experts in their individual capacity.

Comment

Whilst in theory, experts who produce cogent evidence in accordance with their overriding duty to the court should not be deterred by the removal of their immunity from suit, only time will tell if, in practice, this is the case.

It seems an inevitable consequence of this judgment that experts will have to obtain or extend existing insurance policies and that this demand may result in increased premiums which may act as a deterrent for some experts, particularly those in smaller practices. Also experts who do continue to assist with legal proceedings may need to increase their fees to clients to protect their risk which seems to question the principle of 'access to justice'.

The Court could have perhaps limited immunity as opposed to removing it all together or it could have added a requirement that the permission of court be obtained before bringing a claim would have undoubtedly filtered out some of the unjustified claims commenced by unhappy litigants which are likely to result from this decision.

The decision will impact interested parties in different ways:-

  • For insurers, the initial reaction is that premiums will need to rise for professional indemnity cover but in reality the question is whether the risk has actually increased? Experts before this decision had to act professionally and to the highest standards; this does not change post the decision and claims against experts, although permissible, are unlikely.
  • For the expert, the same analysis applies – one would expect to see very little change in practice. Whether experts will be more reluctant to expose themselves to such risks is more of a personal question and there is certainly an argument that some experts may now disappear.

The contents of this brochure are intended as guidelines for clients and other readers. It is not a substitute for considered advice on specific issues. Consequently, we cannot accept any responsibility for this information or for any errors or omissions.

Thomas Eggar LLP is a limited liability partnership registered in England and Wales under registered number OC326278 whose registered office is at The Corn Exchange, Baffin's Lane, Chichester, West Sussex, PO19 1GE (VAT number 991259583). The word 'partner' refers to a member of the LLP, or an employee or consultant with equivalent standing and qualifications. A list of the members of the LLP is displayed at the above address, together with a list of those non-members who are designated as partners. Regulated by the Solicitors Regulation Authority. Lexcel and Investors in People accredited.

Thomas Eggar LLP is not authorised by the Financial Services Authority. However, we are included on the register maintained by the Financial Services Authority so that we can carry on insurance mediation activity which is broadly the advising on, selling and administering of insurance contracts. This part of our business, including arrangements for complaints and redress if something goes wrong, is regulated by the Solicitors Regulation Authority. The register can be accessed via the Financial Services Authority website. We can also provide certain further limited investment services to clients if those services are incidental to the professional services we have been engaged to provide as solicitors.

Thesis Asset Management plc, our associated financial services company, provides a comprehensive range of investment services and advice. Thesis is owned by members of Thomas Eggar LLP but is independent of and separate to it. No lawyer connected with Thomas Eggar LLP provides services through Thesis as a practicing lawyer regulated by the Solicitors Regulation Authority. Thesis is authorised and regulated by the Financial Services Authority. Thesis has its own framework of investor protection and professional indemnity cover but Thesis clients do not enjoy the statutory protection of solicitors' clients.

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