Jones v Kaney [2011] UKSC 13 (29 March 2011)

A psychiatrist, engaged as an expert witness, negligently signed a joint statement damaging her client's personal injury claim. The Supreme Court abolished the long-standing immunity from suit for breach of duty enjoyed by expert witnesses regarding their preparatory work and evidence.

Facts

The claimant, Mr Jones, was knocked off his bicycle by a car driven by an uninsured driver in 2001. He pursued a claim for damages for physical and psychiatric injury. He was examined by a consultant clinical psychologist, Dr Kaney (the respondent), who was instructed as an expert witness on his behalf. Dr Kaney initially diagnosed him with Post Traumatic Stress Disorder (PTSD). However, the defendant’s expert disputed this diagnosis. The trial judge directed the experts to prepare a joint statement. In this joint statement, Dr Kaney signed a document which stated that Mr Jones was not suffering from PTSD but was merely ‘deceptive’ and malingering. This statement was prepared by the opposing expert and Dr Kaney signed it without, as she later admitted, reading it carefully. This joint statement severely undermined Mr Jones’s case, leading him to settle for a much lower sum. Mr Jones then brought proceedings against Dr Kaney for negligence.

Issues

The central legal issue before the Supreme Court was whether the long-standing rule of law that grants immunity from suit to expert witnesses for breach of duty in relation to their participation in legal proceedings should be abolished or maintained. The preliminary issue was whether Dr Kaney could claim immunity from a suit for negligence in respect of the preparation of the joint statement with the opposing party’s expert.

Judgment

The Supreme Court, by a 5-2 majority, allowed the appeal, thereby abolishing the immunity from suit for expert witnesses in relation to the evidence they give in court or the views they express in anticipation of court proceedings. The majority judgment was led by Lord Phillips.

The Majority Opinion

Lord Phillips, delivering the leading judgment, undertook a detailed analysis of the public policy justifications for the immunity. The primary justification advanced for the immunity was that its removal would have a ‘chilling effect’ on the willingness of experts to provide their services, as they would fear being sued by their clients. The majority rejected this argument, drawing a direct parallel with the abolition of advocate’s immunity in Arthur J S Hall & Co v Simons [2002] 1 AC 615. Lord Phillips reasoned that other professionals, such as advocates, owe concurrent duties to the court and their client, and are not immune from suit for negligence. He stated:

I have concluded that no sufficient justification has been made out for continuing to hold expert witnesses immune from suit for breach of the duty of care that they owe to their clients. An expert witness who has negligently given an opinion that has been relied upon by his client will not be able to escape liability by demonstrating that he would have given the same opinion had he been giving evidence in court.

The Court found that the expert’s primary duty is to the court, but they also owe a professional duty of care to their client. The majority concluded that these duties were not irreconcilable and that the threat of litigation for a breach of duty to the client would not undermine the primary duty to the court. On the contrary, it would encourage a higher standard of care. Lord Phillips concluded unequivocally:

For these reasons I would abolish the immunity from suit for breach of duty that expert witnesses have enjoyed in relation to their participation in legal proceedings.

The Dissenting Opinions

Lord Hope and Lady Hale provided strong dissenting judgments. They argued that the immunity was a vital component of an expert witness’s ability to fulfil their overriding duty to the court. They feared that removing the immunity would compromise the impartiality and candour of expert evidence.

Lord Hope argued that the role of an expert witness is fundamentally different from that of an advocate. He stated:

The immunity which an expert witness enjoys from a suit for breach of his professional duty of care is a long-standing rule of law which has been recognised and applied for many years. It is based on a rule of public policy that witnesses should be able to give evidence in court freely and without fear of the consequences.

Lady Hale also dissented, expressing concern about the practical consequences of abolishing the immunity, particularly regarding the supply and quality of expert witnesses. She stated:

My fear is that, in toning down their opinions to avoid the risk of being sued by their own clients, experts will be less likely to provide the court with the forthright, objective and impartial opinions which it is their primary duty to provide and which the court is so dependent upon.

Implications

The decision in Jones v Kaney represents a landmark change in the law relating to expert witnesses in England and Wales. By removing their immunity from suit for negligence, the Supreme Court has placed expert witnesses on the same footing as other professionals, such as lawyers and doctors, who can be held accountable for failing to exercise reasonable skill and care. The decision reinforces the professional obligations of expert witnesses and provides a remedy for clients who suffer loss as a result of their expert’s negligence. It underscores that while an expert’s paramount duty is to the court, this does not negate the professional duty of care owed to the party instructing them.

Verdict: The appeal was allowed. The immunity from suit for breach of duty previously enjoyed by expert witnesses was abolished.

Source: Jones v Kaney [2011] UKSC 13 (29 March 2011)