UK: Supreme Court Abolishes The Immunity Of Expert Witnesses

Last Updated: 21 July 2011
Article by Paul Jonson

Expert witnesses will no longer have the protection of immunity from a claim against them in negligence. In the decision of Jones v Kaney, the Supreme Court has abolished the immunity, the origins of which date back to 1585.

The decision entirely removes the protection previously afforded to expert witnesses in civil and criminal cases for out of court statements (ie experts' reports) and evidence given in court. As a result, expert witnesses will have to consider their actions and advice against the backdrop of possible future claims being made if they act below the required standard.

Background – the facts of the case

Mr Jones was injured when he was knocked down by a driver who was drunk, uninsured and disqualified from driving. As a result, Mr Jones suffered from psychological injuries.

Mrs Kaney was instructed as an expert witness (a consultant clinical psychologist) and reported in July 2003 that Mr Jones was suffering from PTSD. Proceedings were commenced and liability was admitted by the other side. After it was ordered that a joint experts' report be prepared, Mrs Kaney conducted a meeting over the phone with the other expert, retracted the view that Mr Jones was suffering from PTSD and contended that he had exaggerated some of his symptoms. As a result, Mr Jones was forced to settle for a significantly lower sum than if Mrs Kaney had not signed the joint report.

Mr Jones subsequently brought a claim against Mrs Kaney for professional negligence. Mrs Kaney pleaded that she was immune and that the claim should be struck out. The case ultimately reached the Supreme Court.

The decision

Most disputes settle before they reach court and so the principal effect of the previous immunity of experts was to prevent the client from suing for breach of duty where the expert's negligence was alleged to have adversely affected a decision to settle a case. This offended against the principle that where there is a wrong there must be a remedy. The starting point for the Supreme Court therefore had to be that the existence of any immunity had to be clearly justified.

It was concluded (by majority) that there was no compelling justification for the immunity to continue and that it should be abolished. Some of the majority pointed to the similarity between the expert's duty and an advocate's duty to their clients (for some time barristers also held the same immunity from claims) and were very much influenced by the abolition of the advocates' immunity several years earlier.

Implications of Jones v Kaney for experts

More pressure on experts

It remains to be seen whether in practice this decision will make experts more wary of the extent of the advice they give, the giving of their advice in terms of a report and the strength of the views they are willing to give.

In the Supreme Court Lord Brown stated that experts should now have a:

"sharpened awareness of the risks of pitching [their] initial views of the merits too high or too inflexibly."

Lord Collins also said that the decision will:

"ensure a greater degree of care in the preparation of the initial report or the joint reports."

Will the lack of legal immunity lead to fewer professionals acting as experts?

An obvious immediate implication could be that the number of professionals willing to act as expert witnesses is significantly reduced in the future as the potential for liability is now faced. However, those engaged in professional services owe a duty of care to their own clients and are thus exposed to a certain degree of risk in any event, for which they take out insurance. The increase in the scope of that risk could perhaps mean only an increase in the scope of insurance cover required.

The practical consequence could be that professional indemnity premiums for experts increase, a cost which experts may have to pass on ultimately to their clients. The initial terms of engagement of experts may necessitate tighter exclusions of liability and therefore the role of solicitors in helping clients choose the right expert may become even more crucial.

It is worth noting also that the abolition of advocates' immunity has not resulted in any apparent reduced willingness of barristers to enter that profession.

Will this decision open the floodgates?

A further potential significant implication is that the floodgates have now been opened to a raft of new claims against experts where disgruntled and frustrated parties to litigation lose a case and try to seek recompense from elsewhere. There will no doubt be claims brought as a result of this decision but it is anticipated that they will only be where the merits justify a claim being made.

The Supreme Court recognised that the immunity was a relic of law and one that emerged before experts were paid for their evidence and long before negligence had been codified into the legal system. Lord Philips concluded that unlike previously, "the wronged client will [now] enjoy, rather than have denied to him by rule of law, his proper remedy."

Of course only time will tell in relation to the floodgates opening. Spurious claims may be brought but those without private funding will be unlikely to succeed in persuading lawyers to act under conditional fee agreements.

Although the decision clearly applies to an expert's involvement and advice at any stage of a case, Lord Collins stated that "...it is very hard to envisage circumstances in which performance in the witness box could be the subject of even an arguable case."

Again, we can also look at the legacy from the abolition of immunity of barristers in relation to the floodgates issue; there has been no "flood" as yet from disappointed litigants against their advocates.

Limitation

The date on which Mrs Kaney signed the joint statement (November 2005) is the date on which expert immunity essentially ended. Claims founded on negligence from that time are not yet time barred and will remain so until on or around November 2011.

Conclusion

It seems unlikely that a flood of unmeritorious claims being launched will materialise. As referred to above, this long held immunity can easily be seen as unjustifiable in particular given that experts are paid for their advice and time as any provider of professional services would expect to be remunerated. Where there are good grounds for claims to be brought this can only be the corollary and a "proper remedy" for those who suffer loss when paid for professional services are negligent.

It appears that this tightening up is aimed most particularly at experts who change their mind during the course of proceedings for reasons that cannot be justified. Experts who already act and advise to the standard required (and would not change their views without good reason) may well not need to fear this decision.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.