J. Howell and James
In a ground-breaking decision in the case of Jones v
Kaney 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
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
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
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.
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.
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
This article was prepared by David J. Howell (firstname.lastname@example.org or +44 20 7832
3605), Partner and Co-chair of the firm's International Arbitration
Practice Group, James Rogers (email@example.com or +44 0 20 7832
3672), a Senior Associate, and Ina Jahn (firstname.lastname@example.org
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.
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 Jones v Kaney  UKSC13: http://www.supremecourt.gov.uk/docs/UKSC_2010_0034_Judgment.pdf
 Hall v Simons  1 AC 615
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