Expert witnesses: Jones v Kaney and the Law Commission's report

Introduction

There is a significant coincidence in the timings of the publication of the Law Commission Report on Expert Evidence in Criminal Proceedings ¹ and the Supreme Court's ruling in Jones v Kaney, ² which removed the enjoyment of immunity from suit for expert witnesses in civil cases. Here, we summarize the essence of each, draw on the common ground between them and provide a commentary – this may provide some relief for experts anxious as to whether a verdict reflective of a court's rejection of their evidence might be the first step on the road to their being a defendant in an action for negligence.

Recent failings in the field of expert evidence have given rise to notorious difficulties in both criminal and civil litigation, perhaps most infamously in relation to pathologists' evidence in infant mortality cases. ³ Experts who prepare reports in contemplation of legal proceedings are understandably nervous about the broader implications of the judgement in Jones. While experts in civil actions are most directly affected at this stage, the erosion of their immunity created by the Jones ruling will understandably cause ‘criminal’ experts to be concerned about their own positions.

However, help is at hand in the form of the Law Commission Report and its recommendations. No expert report prepared for use in criminal proceedings should fail to take account of the Report and Criminal Procedure Rule 33 (both as it exists and in the enhanced version envisaged by the Law Commission). Cognisance of and adherence to these should protect experts from the risk of becoming defendants.

Jones v Kaney – a pandora's box opened?

The judgements in Jones arguably pose more questions than they provide answers and when taken together might be described by a cynic as something of a canine evening meal. However, the specific – and somewhat extraordinary – facts in the case should serve to allay the most pressing fears of experts that the rejection of their opinion in an eventual verdict might be the precursor to a suit against them, for the apparently blatant negligence by the respondent in Jones puts her in a position leagues away from that of an expert whose competently prepared and delivered opinion has eventually been rejected by a tribunal.

The case involved a road traffic accident, the effects of which resulted in the appellant suffering damage to his physical and mental health. At the suggestion of an orthopaedic surgeon employed on his behalf, the appellant's solicitors instructed a clinical psychologist – the respondent in the appeal to the Supreme Court. Her first report concluded that the appellant was suffering from post-traumatic stress disorder (PTSD). ⁴ Proceedings were issued against the driver responsible for the accident and his insurance company (Fortis) admitted liability, leaving quantum as the only issue.

Thereafter the respondent produced a second report suggesting that a PTSD diagnosis was not warranted, but that the appellant had displayed some symptoms of it and was suffering from depression. A report by the psychiatrist instructed by Fortis expressed the view that the appellant was exaggerating his symptoms.

The District Judge ordered these experts to hold discussions and produce a joint report. The discussion took place during a telephone conversation between the experts and consequent upon this a joint report was prepared by the expert for Fortis which was signed by the respondent without her own amendment or comment. The joint report was detrimental to the appellant's claim, stating that while the appellant had had a psychological adjustment reaction to the accident, this did not reach the level of PTSD. It also included the view that the appellant had been deceitful in his reporting.

It later became clear that the respondent expert had not seen the opposing expert's report prior to the telephone discussion. Further, the joint report did not reflect what she had agreed during the telephone discussion – but she had felt under pressure to sign it. In her considered view the appellant was evasive rather than deceptive and she was, after all, of the opinion that the defendant had suffered from PTSD, although it was now resolved.

Whereas the respondent subsequently agreed to the appellant's solicitors amending the joint report, permission to effect this was denied by the court and the appellant had no option but to settle his claim for a sum significantly less than he might have been awarded had the joint report not been signed. He sought to sue the respondent on the basis of her negligence relating to the preparation of the joint report.

The claim was struck out at first instance on the grounds that expert witnesses enjoyed immunity from suit (dating at least from 1585 and the judgement in Cutler v Dixon ⁵ – as more recently confirmed by the House of Lords in Arthur SS Hall v Simons ⁶ ), but Blake J granted a ‘leapfrog certificate’ on the grounds that the case involved a point of law of general public importance and his ruling thus became the subject of consideration by the Supreme Court, the Court of Appeal having been bypassed.

The question for the Supreme Court was whether the applicant was precluded from suing the respondent on the grounds of negligence owing to the constraints of the existing law relating to immunity from suit for expert witnesses. In addressing this issue, the Court considered the following questions:

What are the purposes of the immunity?

Viewed as a whole, however, Lord Philip's judgement suggests that a litigant who employs an expert can sue him for negligence, but not that anyone adversely affected by the evidence of an expert can. At first blush the judgement does not appear to bite in the criminal context, since this usually involves no contract and any arising duty of care owed to the defendant by the expert – the duty being owed to the court. Further, the exclusion of actions on the basis of defamation is specifically preserved. However, the far reaching implications of the judgement, its impact on the general principle of witness immunity and the variety of legal scenarios to which it could apply cannot be overlooked.

It might be said that the Jones ruling is specific to the astonishing rise to liability on its facts and, anyway, the respondent's liability did not involve competently prepared and delivered evidence at variance with that of a second expert whose opinion was eventually preferred by the tribunal. The Jones respondent had failed to read the opposing report and signed a joint one which did not reflect her view; she admitted that the joint report was not, thus, correct and accepted that she ought to have caused it to be amended to take account of her opinions.

There are apparent limitations to the Jones ruling and one must be wary that anxiety as to its future implications does not lead to over-imaginative consideration of analogous situations to the Jones respondent's. Yet, there seems little question but that this creates, if not a box, then at least an envelope of Pandoric proportions. This was recognized by Lord Hope in his dissenting judgement:

‘There is a warning here, to repeat the old adage, that one thing leads to another. Removing just one brick from the wall that sustains the witness immunity may have unforeseen consequences.’ ⁸

All the judges recognized the implications that removing employed experts' immunity in the civil context would have in others. Lord Hope and Baroness Hale specifically identified the likelihood that the ruling would have repercussions in other non-civil tribunals and proceedings.

Lord Hope:

‘Fuzzy edges: where to draw the dividing line. This is a much more important point. Although [counsel for the appellant] was careful to confine his submissions to civil cases and to the relationship between the expert and his own lay client only, it is hard to see how one could justify removing immunity in that respect but keeping it for other tribunals which hear evidence from experts. This would be a matter of particular concern in the criminal jurisdiction. The expert for the prosecution would continue to enjoy the immunity from proceedings at the instance of the defendant. The expert for the defence would have it removed from him. One cannot discount the fact that exposure to the risk of incurring the expense and distress of a harassing litigation at the client's instance should the defence fail, however unlikely, will colour his evidence. The public interest surely demands that experts who give evidence on either side in criminal proceedings are free from pressures of that kind.’ ⁹

Lord Hope drew attention to the Law Commission Report and the fact that it did not specifically address the question of immunity. He recommended consideration by Parliament of this issue after a further Law Commission report. He also highlighted Civil Procedure Rule 35, which regulates the preparation and use of expert reports in civil litigation, suggesting that it should have universal application and that it is arguably most pertinent in the criminal arena. ¹⁰

Lady Hale asked, ‘how far beyond ordinary civil proceedings is this exception to go?’. She identified ‘demarcation problems’ with regard to private law proceedings (such as between landlords and tenants, and employers and employees) and public law and family proceedings (involving, for example, psychiatrists giving evidence in Mental Health Act related proceedings and in Family Court cases concerning allegations of sexual abuse). ¹¹

The Law Commission Report

While Lord Hope pointed out that the Report does not specifically address the issue of immunity and recommended the commissioning of a further report to facilitate the issue of expert immunity being considered by Parliament, the Report is nonetheless instructive to the criminal expert considering the implications of the Jones ruling.

The Law Commission Report recommends:

A new, statutory reliability test for expert opinion evidence. The primary legislation containing the test would set out a list of generic factors for judges to apply. Under this test a rule would provide that where there was any doubt as to whether expert evidence comprised fact or opinion, it would be treated as opinion. The burden of demonstrating reliability should be borne by the party seeking to adduce the evidence.

Most procedurally useful are the recommended additions to CPR33 ¹⁸ :

A rule requiring an appendix to an expert's report setting out:

Sufficient information to show that the expertise and impartiality requirements are satisfied;

Interface/conclusion

While the ambit of the ruling in Jones is limited at least as things legally stand, it would be illogical for a negligent expert to be safe from suit merely because his failings arose during criminal rather than civil proceedings. The criminal process is perhaps better equipped to prevent situations getting to the stage reached in Jones for a criminal judge would more likely grant an adjournment to ensure a fair trial if there were similar problems with either side's expert's conduct or the preparation of their report. However the possible results of negligence not checked are far graver for criminal defendants, involving as they do the prospect of wrongful loss of liberty.

In Jones Lord Hope highlighted Civil Procedure Rule 35 and suggested that it should have a more universal application, with specific reference to its suitability in the criminal context. ¹⁹ But Lord Dyson's limited reference to it [above] aside, neither Lord Hope nor any of the other judges referred to Criminal Procedure Rule 33.

Yet this criminal court equivalent to Civil Procedure Rule 35 is where salvation lies for experts in the criminal litigation arena. Criminal Procedure Rule 33 is too often overlooked by experts, judges and parties' lawyers. Compliance with it (and, better, in its format as enhanced by the Law Commission) should ensure that experts effectively discharge their primary duty to the court and thus protect themselves from the sceptre of suit.

Following Jones and its indubitable consequences civil practitioners and experts instructed by them will take the lead by looking to Civil Procedure Rule 35 to insulate experts from the risk of suit. Their criminal counterparts should follow their example through obedience to Criminal Procedure Rule 33, alive to the equally real though as yet unclear implications arising from Jones in the criminal context. For as well as protecting the expert from negligence suits this course would have the added and important advantage of leading to the greater likelihood of just verdicts in criminal cases.