Jones v Kaney

DMC/SandT/11/16

United Kingdom Supreme Court

Jones v. Kaney

UK Supreme Court; Lords Philips, Hope, Brown, Collins, Kerr, Dyson, Lady Hale; [2011] UKSC 13; 30 March 2011

Roger Ter Harr QC and Daniel Shapiro (instructed by Hill Dickinson LLP) for the Appellant, Jones

Patrick Lawrence QC and Charles Phipps (instructed by Berrymans Lace Mawer LLP) for the Respondent, Kaney

REMOVAL OF EXPERT WITNESS IMMUNITY IN CIVIL PROCEEDINGS

Summary

In a 5-2 split decision, the Supreme Court held that expert witnesses have no immunity from liability for negligently preparing a joint witness statement in particular, and no immunity from liability for negligently performing the duties of an expert witness in general.

This case note has been contributed by Justin Gan Boon Eng, LLB (Hons) (NUS), a trainee solicitor in Singapore

Background

Jones was stationary on his motorcycle and waiting to turn at a road junction in Liverpool on 14 March 2001 when he was knocked down by a drunk, uninsured, and disqualified driver. Jones suffered significant physical injuries and psychiatric harm.

Subsequently Jones’ solicitors instructed Kaney, a consultant clinical psychologist, to examine Jones and prepare reports on Jones’ psychiatric state for litigation purposes. Fortis, the relevant insurer replacing the Motor Insurance Bureau, eventually admitted liability, leaving only quantum in issue. Fortis’ expert witness produced a conflicting report. Kaney and Fortis’ expert witnesses were ordered to hold discussions and produce a joint expert witness statement.

The joint statement damaged Jones’ claim, suggesting that he had heavily exaggerated the effect of the collision on his psychiatric state. It later emerged that Kaney merely discussed the joint statement with Fortis’ expert over the telephone and signed the draft joint statement produced by Fortis’ expert without amendment or comment.

Jones subsequently sued Kaney, who admitted negligence but sought to rely on expert witness immunity.

Judgment

A 5-2 majority of the Supreme Court overturned the Court of Appeal’s decision, and allowed Jones’ appeal. Notwithstanding Jones’ counsel expressly limiting his submissions to the act of preparing a joint expert statement, the Supreme Court’s analysis and holding were regarded by all members of the bench as determinative of expert witness immunity in general. Lord Philips delivered the leading judgment, with which Lords Brown, Collins, Kerr, and Dyson agreed. Lord Hope and Lady Hale dissented.

The reasoning of the minority

Lord Hope and Lady Hale approached the appeal cautiously, asking if there was sufficient reason to depart from established jurisprudence and whether removing expert witness immunity in civil cases could be achieved in a principled manner. They decided otherwise.

Lord Hope identified the primary rationale behind the immunity as allowing expert witnesses to give evidence unaffected by fear of subsequent suit by disgruntled clients, a rationale still relevant today.

Most significantly, both Lord Hope and Lady Hale were concerned with the effect of the majority’s decision on expert witnesses in other proceedings – for example, in criminal or family court proceedings, or in proceedings before a tribunal. Most powerfully, in family court proceedings in relation to children, Lady Hale found it unacceptable that an expert witness may now be potentially liable to the disappointed parent despite that expert witness’ duty being owed principally to the child.

The reasoning of the majority

Lords Philips, Brown, Collins, Kerr, and Dyson examined the rationale underlying expert witness immunity. For the following reasons, they found that it could no longer be sustained.

First, the authorities establishing expert witness immunity pre-dated the development of modern negligence principles and the recognition that there could be liability for making negligent statements. These authorities had not been adequately reconsidered in the light of these developments.

Second, no wrong should be without a remedy. Therefore, since expert witnesses owe a duty to their clients, breaches of that duty should allow their clients to recover for losses flowing therefrom. Insofar as Kaney sought to rely on the immunity, she had to justify its continued application. Lord Dyson explained (at [99]) that the expert witness’ duty to his client was not in conflict with his duty to the court, simply because the expert witness had to “perform his function as an expert with the reasonable skill and care of an expert drawn from the relevant discipline… includes a duty to perform the overriding duty of assisting the court.”

Third, the immunity was in any case not absolute. The established exceptions included liability for defamation, wasted costs, penalties imposed in disciplinary proceedings by the relevant professional bodies, perjury, perverting the course of justice, contempt of court, malicious prosecution, or misfeasance in public office. Lord Hope however viewed these exceptions as cases of exceptions proving the existence of the rule, rather than weakening it.

Fourth, expert witness immunity was partially based on the immunity of barristers/advocates from “suit for what [they do] in court”, which has itself been abolished in Arthur JS Hall & Co. v. Simons, [2002] 1 AC 615 with little negative impact, if any at all. The majority considered that insofar as the question of duties was concerned, the position of expert witnesses was more analogous to that of barristers/advocates than the position of witnesses of fact. The latter continue to enjoy witness immunity.

Fifth, in any case, most expert witnesses already possess liability insurance or have the capability to obtain it. For that reason, as well as experience from the previous abolition of barristers’/advocates’ immunity, it was deemed unlikely that the removal of expert witness immunity would make potential expert witnesses significantly less inclined to render their services in an impartial and competent manner.

Kaney’s arguments based on (1) a purported chilling effect on potential expert witnesses, and (2) the dangers of relitigating the substantive dispute by way of negligence suits against offending expert witnesses were given short shrift by all members of the Supreme Court.

Jones’ appeal was allowed.

Comment

The concerns of expert witnesses should not be overstated. Liability insurance aside, it should be kept in mind that any negligence of an expert witness would necessarily have to be proven by calling another expert witness to show that the first expert had acted in a negligent manner which no reasonable expert in that profession would have done. As experience with the Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582 and Bolitho v. City and Hackney Health Authority [1997] 4 AER 77 tests for medical negligence have shown, this is by no means an easy threshold for claimants to cross. In short, competent and careful expert witnesses have nothing to fear.

It appears that the main practical effect of Jones v. Kaney will be on expert liability insurance – the perception of increased risk may lead to an increase in premiums, and an increased propensity among potential expert witnesses to consider procuring liability insurance.