Fulbright & Jaworski Alert: Experts No Longer to Enjoy Immunity From Suit Under English Law

Fulbright & Jaworski Alert: Experts No Longer to Enjoy Immunity From Suit Under English Law

by David J. Howell and James Rogers

In a ground-breaking decision in the case of Jones v Kaney[1] delivered on 30 March 2011, the UK Supreme Court abolished the long-standing common law rule that expert witnesses in UK civil proceedings are immune from suit in relation to their evidence and in respect of advice given in anticipation of civil proceedings.

The effect of this decision will be to expose expert witnesses to potentially significant claims for negligence. This may lead to practical changes in the instruction of expert witnesses. The Court was divided on whether this decision will lead to improved expert evidence.

Jones v Kaney

The case arose out of a traffic accident and a subsequent personal injury claim. As a result of the accident, Mr Jones, the Appellant, allegedly suffered post-traumatic stress disorder ("PTSD"). The Respondent, Dr Kaney, was the consultant clinical psychologist instructed by the Appellant's solicitors as an expert to report on Mr Jones' psychological well-being. She opined that he was suffering from PTSD.

Dr Kaney, without making any amendments or corrections, subsequently signed a joint experts' statement prepared by the opposing expert notwithstanding that it conflicted with her earlier opinion. As a result, the Appellant's personal injury claim was said to have been settled for significantly less than would otherwise have been appropriate. The Appellant brought a professional negligence claim against the Respondent for having signed the joint experts' statement without making amendments to reflect her expert opinion.

The claim against Dr Kaney was struck out by the court at first instance on the basis of the long-standing rule that witnesses, including expert witnesses, are immune from suit in relation to evidence given in UK civil proceedings.

That decision was overturned by a majority of the UK Supreme Court on the basis that public policy no longer justifies the immunity of expert witnesses.

Majority judgment of Supreme Court

Lord Phillips, in giving the leading majority judgment, took the view that "there is a general rule that every wrong should have a remedy and that any exception to this rule must be justified as being necessary in the public interest."

After considering the purpose, scope and effect of the long-standing immunity rule, the majority of the Supreme Court concluded that there was no longer a sufficient public policy justification for continuing to hold expert witnesses immune from suit in relation to their participation in civil proceedings.

The judgment does not affect witnesses of fact, who were considered not to be providing their services "voluntarily" and therefore continue to enjoy full immunity as a matter of public policy.

The majority considered the situation of an expert witness to be analogous to that of an advocate. The long-standing immunity from suit of barristers was abolished in 2001 by the decision in Hall v Simons.[2] As in the case of advocates, there was considered to be no conflict between the duty of the expert to provide his service to the client with reasonable skill and care and the overriding duty that an expert witness owed to the court.

The majority of the Supreme Court also considered it unlikely that experts would be deterred from providing their services if immunity from suit was removed. Provided an expert had acted diligently, the concern that the removal of immunity would expose expert witnesses to being harassed by vexatious claims was considered to be unfounded.

The majority considered that abolishing the immunity from suit of expert witnesses was likely to improve the quality of expert evidence. Lord Brown considered that the gains to be derived from abolishing immunity substantially exceeded any potential adverse effect as "...the most likely broad consequence of denying expert witnesses the immunity ... will be a sharpened awareness of the risks of pitching their initial views of the merits of their client's case too high or too inflexibly lest these views come to expose and embarrass them at a later date."

Dissenting minority judgments

Lord Hope and Lady Hale dissented from the majority and would have dismissed the appeal.

Given the nature and purpose of the long-established immunity rule, the dissenting minority considered that the law should only be changed if there was a principled basis for removing the immunity from suit and if the boundaries of any exception were logical and clear. The minority did not consider that such a basis existed. In their view, it was not clear whether the exception would extend beyond civil law proceedings to include tribunals and public law proceedings, and there was a lack of reliable evidence to indicate the effects the change might have "either on the care with which experts give their evidence, or upon their willingness to do so."

The minority Justices felt that there was a real risk of worthless, but potentially time-consuming, claims being brought against expert witnesses, for which indemnity insurance would not necessarily provide an adequate remedy. The minority considered that, given the associated uncertainties, any reform of the rule should have been made through the English Law Commission and the UK Parliament, rather than by the UK Courts.

Comment

The potential exposure to liability will undoubtedly cause concern to expert witnesses. The removal of immunity from suit may result in experts seeking to limit or exclude their liability to the party appointing them through their contractual terms of appointment. It may also require adjustments to professional indemnity insurance coverage, leading to higher insurance premiums, a cost which will no doubt be passed on to clients. Those who do not regularly act as "professional" expert witnesses may be more reluctant to give expert evidence. More positively, as a result of this decision, clients may receive less "optimistic" and more "realistic" expert opinions, as experts choose to adopt a more cautious approach, especially when giving initial pre-dispute opinions.

This article was prepared by David J. Howell (dhowell@fulbright.com or +44 20 7832 3605), Partner and Co-chair of the firm's International Arbitration Practice Group, James Rogers (jrogers@fulbright.com or +44 0 20 7832 3672), a Senior Associate, and Ina Jahn (ijahn@fulbright.com or +44 20 7832 3613), a Legal Assistant, at Fulbright & Jaworski International LLP in London. For further information please contact any of the authors listed above.

Fulbright & Jaworski's Arbitration and ADR Practice
With more than ten nationalities, fluency in over a dozen languages, and experience representing clients in all types of international arbitration matters, Fulbright's Arbitration and ADR Group practitioners have represented public and private parties in disputes around the globe, regardless of the parties' nationalities, the governing law or the applicable arbitral rules. We are able to resolve international disputes effectively through arbitration by being familiar with the treaties and statutory framework in which international arbitrations are conducted and by having an extensive knowledge of the relevant aspects of the local legal systems and arbitration laws in order to employ them for the benefit of a client. Coordinating our internationally recognized work with Fulbright's strategic network of locations in the United States, Europe, Asia and the Middle East, we continue to fulfill our long-standing commitment to develop the best solution for each client and each dispute.

----

[1] Jones v Kaney [2011] UKSC13: http://www.supremecourt.gov.uk/docs/UKSC_2010_0034_Judgment.pdf

[2] Hall v Simons [2001] 1 AC 615

Visit the Fulbright & Jaworski Publications page for more analysis of international and foreign law issues.