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

A claimant in a personal injury case sued his expert witness psychologist for negligently signing a joint statement that damaged his case and led to a reduced settlement. The Supreme Court abolished the immunity from negligence claims that expert witnesses had previously enjoyed when providing evidence for their instructing clients.

Facts

The appellant was injured in a road traffic accident in 2001 and suffered physical injuries as well as psychiatric consequences including post-traumatic stress disorder (PTSD), depression, and chronic pain syndrome. He instructed solicitors who retained the respondent, a consultant clinical psychologist, to examine him and prepare reports for litigation. The respondent initially diagnosed PTSD but later signed a joint statement with the defendant’s expert without amendment, which contradicted her earlier assessments and was damaging to the appellant’s claim. The joint statement suggested the appellant was being deceptive. The case was subsequently settled for less than anticipated. The appellant brought a claim against the respondent for negligence.

The Respondent’s Explanation

When challenged about the discrepancy, the respondent admitted she had not seen the opposing expert’s reports at the time of the telephone conference, felt under pressure when agreeing to the joint statement, and that the statement did not reflect what she had actually agreed during the conversation.

Issues

The central issue was whether an expert witness retained for reward enjoys immunity from suit by their own client for negligence in preparing evidence or joint statements for use in legal proceedings. The broader question was whether public policy justified conferring any immunity from liability in negligence on expert witnesses in relation to their duties.

Judgment

The Supreme Court, by a majority of 5 to 2, allowed the appeal and abolished the immunity from suit for breach of duty that expert witnesses had enjoyed in relation to their participation in legal proceedings.

Majority Reasoning

Lord Phillips, delivering the leading judgment for the majority, held that the justification for the immunity had not been established. He noted that expert witnesses differ significantly from witnesses of fact as they undertake contractual duties to their clients for reward. The expert’s duty to the court is part of the duty owed to the client, not in conflict with it. Lord Phillips rejected arguments that removal of immunity would deter experts from providing services or would cause them to tailor evidence to avoid litigation, noting that advocates’ immunity had been removed in Hall v Simons without adverse consequences.

Lord Collins emphasised that there were no longer policy reasons for retaining immunity, as the threat of civil action was unlikely to deter a conscientious expert any more than the hope of future instructions might influence them. Lord Dyson held that the immunity could no longer be justified given that expert witnesses owe clear duties of care to their clients in both contract and tort.

Dissenting Opinions

Lord Hope and Lady Hale dissented. Lord Hope emphasised the long-established nature of witness immunity and argued that any exception required justification. He expressed concern about the lack of clear boundaries for any exception and the potential consequences for different types of proceedings. Lady Hale raised concerns about the practical difficulties in drawing lines between different categories of expert witnesses and the potential impact on family and public law proceedings.

Implications

This decision represents a significant change in the law. Expert witnesses retained for reward are now liable to their clients for negligence in preparing and giving evidence, though they retain absolute privilege against defamation claims. The decision emphasises that experts’ overriding duty to the court forms part of their contractual duty to their client, not a conflicting obligation. The ruling aligns the position of expert witnesses more closely with that of advocates following Hall v Simons, recognising that professionals who undertake duties should be accountable for breaches of those duties. The decision applies to civil proceedings but leaves open questions about its application to criminal and family proceedings.

Verdict: Appeal allowed by majority (5-2). The immunity from suit for breach of duty enjoyed by expert witnesses in relation to evidence given in court or views expressed in anticipation of court proceedings was abolished.

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