Abstract
The case of Jones v Kenny breaks new ground as the Supreme Court (by a majority of 5 to 2) ruled against retaining the longstanding rule that expert witnesses are immune from suit (The Times, 31 March 2011). Henceforward, therefore, expert witnesses may be sued in negligence in respect of evidence they give in court and/or for views expressed in anticipation of court proceedings. The Supreme Court allowed an appeal by the claimant Paul Jones from the High Court decision of Blake J ([2010] EWHC 61 (QB)) who had struck 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 following a road traffic accident (RTA).
Giving the leading judgment, Lord Phillips expressly took a different view from the decision in Stanton v Callaghan ([1998] QB 75) where the Court of Appeal (CA) held that the immunity of an expert witness extended to protect him from liability for negligence in preparing a joint statement for use in legal proceedings. Indeed, the claim in this case related precisely to allegations of such negligence and it had initially been struck out by the High Court to comply with that CA judgment but the judge had granted a “leapfrog” certificate so that the issue could bypass the CA and be dealt with directly by the Supreme Court.
As Lord Phillips remarked it is surprising that the immunity conferred on an expert witness in such circumstances had not been legally challenged before. For over 400 years it seemed to have been simply accepted that the immunity which protected witnesses of fact applied equally to prevent a client from suing in negligence the expert witness he had retained. This immunity was established well before the development of the modern law of negligence evolved and long before it became common for forensic experts to offer services under contracts for reward.
There was no reported case where immunity was invoked against a claim for breach of a duty of care brought against a professional expert by his client before Palmer v Durnford Ford [1992] QB 483 which applied by analogy the decision in relation to the advocate's immunity from suit in Saif Ali v Sydney Mitchell & Co [1980] AC 198.
But 20 years later that immunity was abolished by the House of Lords decision in the case of Arthur J S Hall & Co v Simons [2002] 1 AC 615 which dealt with the immunity of barristers but did not at the same time consider the immunity of expert witnesses and whether it should be retained.
Lord Phillips posed the vital question: was the experts' immunity justified given the general principle that there should be no wrong without a remedy. Accordingly, the issue was whether the abolition of immunity would probably be attended by such disadvantage to the public interest as to make its retention clearly justifiable. In his view there was no such justification; he did not see that the risk of being sued in such circumstances was more discouraging and a greater disincentive than the possibility of being sued for providing any other professional services. The principal justification for immunity urged by the defendant in this case was that it was necessary to ensure that the expert performed his duty to the court.
That duty required him, whether when attempting to reach agreement with the expert on the other side, or when giving evidence to the court, to give his honest opinion, even if that proved adverse to the client's case. The defendant argued that the expert would have some apprehension about taking such a course and that immunity from suit was necessary to allay that apprehension.
Lord Phillips' view was that as expert witnesses had to date had the benefit of immunity how they would behave if that immunity was removed had to be a matter of conjecture or, more accurately, a matter of reasoning. But if reasoning was applied it did not support the defendant's thesis. An expert's initial advice was likely to be for the benefit of his client alone. It was on the basis of that advice that the client was likely to decide whether to proceed with his claim, or the terms on which to settle it. If the expert subsequently formed the view, or was persuaded that his initial advice was over-optimistic, or that there was some weakness in his client's case which he had not appreciated, his duty to the court was frankly to concede his change of view. The witness with integrity would do that.
It was possible that some experts might not have that integrity. They might be reluctant to admit to the weakness in their client's case because of loyalty to the client and his team, or because of a disinclination to admit to having erred in that original opinion. But whether this was due to a fear of being sued was highly questionable; at least a fear of being sued for the opinion given to the court. Experts were well aware of their duty to the court and if he had frankly accepted he had changed his opinion then it would be apparent that he was performing his duty to the court.
Barristers had lost their immunity from suit some years earlier and yet despite the long held belief that they needed immunity from suit to ensure they were not inhibited from performing their duty in court and to the court, their readiness to perform all those duties had not been diminished. It had not led to a proliferation of claims involving barristers' duties (or those of solicitors) in relation to the same kind of professional duties in court proceedings and there was no likelihood that removal of the expert witnesses' immunity from suit would give rise to a mass of vexatious claims or multiplicity of lawsuits. Accordingly, the immunity of suit in relation to their participation in legal proceedings should be abolished.
It is important to note that the Supreme Court emphasized that loss of immunity did not extend to the absolute privilege they enjoyed in respect of claims for defamation.
Lord Brown, Lord Collins, Lord Kerr and Lord Dyson delivered concurring judgments.
Lord Hope dissenting took the view that there was a secure principled basis for removing the immunity, the lack of a clear dividing line between what was to be affected by the removal and what was not and the uncertainty of what would follow from this decision suggested to him that it would be wiser to leave matters as they were. Lady Hale also delivered a dissenting judgment.
Time will tell whether a significant number of expert witnesses will decline to provide advice in respect of legal proceedings now that their immunity has been abolished. More difficult to judge is how far, if at all, experts will modify their advice with this in mind and whether, as one hopes, this will be for the better of all concerned.