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Jones V Kaney

The Incorporated Council of Law Reporting for England and Wales reports that the UK Supreme Court held by a majority of 5-2 that the immunity from suit for breach of duty that expert witnesses had previously enjoyed in relation to their participation in legal proceedings should be abolished.

The Supreme Court so held (Lord Hope DPSC and Baroness Hale JSC dissenting) in allowing an appeal by the claimant, Paul Wynne Jones, from the decision of Blake J in the Queen’s Bench Division on 21 January 2010 [2010] EWHC 61 (QB) striking out his claim for negligence against the defendant, Sue Kaney, a clinical psychologist, in respect of her preparation of a joint experts’ statement to be used in a personal injury action brought by the claimant following a road traffic accident.

The majority concluded that it would not be right to start with a presumption that because the immunity for experts existed it should be maintained unless it was shown to be unjustified. The onus lay fairly and squarely on the defendant to justify the immunity behind which she sought to shelter.

The  defendant urged the argument that immunity was necessary to ensure that an expert performed his duty to the court. As expert witnesses had, to date, had the benefit of immunity, how they would behave if that immunity was removed? The majority rejected the reasoning, concluding that it did not support the defendant’s thesis. An expert would be well aware of his duty to the court and if he accepted that he had changed his opinion, then it would be apparent that he was performing that duty.

His Lordship doubted whether removal of expert witness immunity would lead to a proliferation of vexatious claims or a risk of multiplicity of suits. No justification had been shown for continuing to hold expert witnesses immune from suit in relation to the evidence they gave in court or for the views they expressed in anticipation of court proceedings. It followed that the immunity from suit for breach of duty that expert witnesses had enjoyed in relation to their participation in legal proceedings should be abolished. That conclusion did not extend to the absolute privilege that experts enjoyed in respect of claims in defamation.

LORD BROWN OF EATON-UNDER-HEYWOODLORD COLLINS OF MAPESBURYLORD KERR OF TONAGHMORE and LORD DYSON JJSC gave concurring judgments.

LORD HOPE OF CRAIGHEAD DPSC and BARONESS HALE OF RICHMOND JSC gave dissenting judgments.

Lord Hope said "The question in this case is whether an exception should be made to the rule that witnesses may not be sued in respect of evidence given in court, or things said or done in contemplation of giving evidence in court, where the witness is an expert who accepts instructions from the litigant to give evidence for reward. The respondent is said to have negligently signed an inaccurate joint statement which had been prepared as directed by the judge under CPR 35.12(3). She did not give evidence in court, as the case was subsequently settled. So it is her conduct when she agreed to the way the joint statement had been worded by the other side's expert that is the focus of attention.

The purpose of the rule is to ensure that witnesses are not deterred from coming forward to give evidence in court and from feeling completely free to speak the truth when they do so, without facing the risk of being harassed afterwards by actions in which allegations are made against them in an attempt to make them liable in damages. The rule should be left unchanged, he said: The lack of a secure principled basis for removing the immunity from expert witnesses, the lack of a clear dividing line between what is to be affected by the removal and what is not, the uncertainties that this would cause and the lack of reliable evidence to indicate what the effects might be suggest that the wiser course would be to leave matters as they stand. 

The case can be read at http://www.bailii.org/uk/cases/UKSC/2011/13.html