The Supreme Court has swept away the longstanding immunity from suit afforded to expert witnesses in a 5 to 2 majority decision in Jones v Kaney1. The decision had been widely expected, given that advocate’s immunity was removed in 2001.
Mr Jones was the victim of a road traffic accident. He was knocked off his motorcycle by a car driven by a drunk, uninsured and disqualified driver. As a result to the accident, Mr Jones suffered significant physical and psychiatric injury.
Mr Jones consulted solicitors who brought a claim for personal injury on his behalf. Unsurprisingly, liability was admitted by insurers, but quantum remained in issue. Mr Jones’ solicitors instructed Dr Kaney, an expert clinical psychologist, to examine Mr Jones and to prepare a report for the litigation. Dr Kaney came to the conclusion that Mr Jones was suffering from posttraumatic stress disorder (PTSD). The court ordered the parties’ experts to hold discussions and to prepare a joint statement. That discussion took place on the telephone and Dr Kaney signed the draft joint statement prepared by the opposing expert without amendment or comment.
The joint statement was damaging to Mr Jones’ claim – it recorded Dr Kaney’s agreement that Mr Jones had not in fact suffered from PTSD and that he had been deceitful in his reporting. When asked for an explanation for the discrepancy between the joint report and her earlier assessments of Mr Jones, Dr Kaney provided what the judge at first instance described as “an unhappy picture” of how the joint statement came to be signed.
Mr Jones then pursued a claim against Dr Kaney, alleging that, as a result of her agreeing the joint report, he was obliged to settle his claim for significantly less than he would otherwise have obtained. Dr Kaney applied to have the claim against her struck out, on the basis that expert witnesses have immunity from suit. The judge at first instance had no option but to grant the application, because he was bound by prior Court of Appeal authority on the issue. However, he also gave Mr Jones permission to appeal direct to the Supreme Court.
The history of expert immunity
The Supreme Court reviewed the history and development of expert immunity and the reasons for it. Lord Phillips explained that the history of that immunity dates back over 400 years. The continuous theme running through the cases since then was the “chilling effect that the risk of claims arising out of conduct in relation to legal proceedings would have. It would make claimants reluctant to resort to litigation. It would make witnesses reluctant to testify. If they did testify, it would make them reluctant to do so freely and frankly. The cases emphasise that the object of the immunity is not to protect those whose conduct is open to criticism, but those who would be subject to unjustified and vexatious claims by disgruntled litigants.”
Before this case, the leading authority on expert immunity was Stanton v Callaghan2. In that case, the Court of Appeal held that expert witnesses should have absolute immunity from suit for claims relating to the evidence they give in court, and that that immunity would extend to the contents of the report that the expert adopts as his evidence. Chadwick LJ explained that “In my view, the public interest in facilitating full and frank discussion between experts before trial does require that each should be free to make proper concessions without fear that any departure from advice previously given to the party who has retained him will be seen as evidence of negligence. That, as it seems to me, is an area in which public policy justifies immunity. The immunity is needed in order to avoid the tension between a desire to assist the court and fear of the consequences of a departure from previous advice.”
The court drew an analogy between the position of an expert witness and that of an advocate, and applied the reasoning of the House of Lords in Rondel v Worsley3, in which the Law Lords held that barristers needed to be afforded immunity from suit in order to be given the fullest opportunity to discharge their duties to the court. In Arthur JS Hall v Simons4, the House of Lords abolished the principle of immunity from liability in negligence for barristers. Immunity for expert witnesses, however, remained intact.
The purpose of expert immunity
Against this background, in the leading judgment, Lord Phillips reviewed the purposes of the immunity of experts and considered whether immunity could be justified. He found that the primary purposes of expert immunity were to address:
- the reluctance that an expert would have to give evidence that was contrary to his client’s interest, if there was risk that this might lead the client to sue the expert
- the risk that potential liability in negligence would make expert witnesses more reluctant to provide their services at all
- the undesirability of one court being required to pass judgment on the correctness of the decision of another court, which is a possible consequence of permitting claims for negligence against expert witnesses.
Is the immunity justified?
Lord Phillips said that it would not be right to start with a presumption that, because the immunity exists it should be maintained, unless it is shown to be unjustified. The onus lay fairly and squarely on Dr Kaney “to justify the immunity behind which she seeks to shelter”. He then considered the various justifications advanced for the immunity:
- Reluctance to testify – Lord Phillips could see no justification for the assumption that, if expert witnesses lose their immunity, they will be discouraged from offering their services at all. All who provide professional services that involve a duty of care are at risk of being sued for breach of that duty. They customarily insure against that risk.
- To ensure that experts give full and frank evidence to the court – there was no empirical evidence to support this assertion. Lord Phillips felt that as experts have, to date, had the benefit of immunity, how they might behave if immunity was removed was a matter of pure conjecture. If an expert is reluctant to admit to a change of mind when giving evidence in court, that might be because of loyalty to the client, or his team or because of a disinclination to admit to having been wrong in an earlier opinion. Lord Phillips questioned whether it would really be due to a fear of being sued for the opinion given in court. Removal of barristers’ immunity had not resulted in any diminution of advocates’ willingness to perform their duty to the court.
- The potential for vexatious claims for breach of duty – this case was not, of course, an example of a vexatious claim, but Lord Phillips doubted whether the removal of immunity would lead to a proliferation of vexatious claims, if only because, in order to get such a claim off the ground, the claimant would require the support of another expert.
- The risk of a multiplicity of suits – Lord Phillips gave this argument short shrift for all the reasons already given, although he conceded that the risk of such claims was greater from those convicted of a criminal offence.
Lord Phillips concluded that there was therefore no real justification for continuing to hold expert witnesses immune from suit in relation to the views they give in court or the views they express in anticipation of court proceedings.
Lords Brown, Collins, Kerr and Dyson agreed. Lord Brown said that he would welcome the most likely consequence of removing immunity from experts, which would be a “sharpened awareness of the risks of pitching their initial views of the merits of their client’s case too high or too inflexibly lest these views come to expose and embarrass them at a later date.” He also thought that, in the rare cases where the expert behaves in an “egregious” manner, or negligently causes his client loss, the wronged client should have a proper remedy.
Lord Collins held that the “practical reality is that, if the removal of immunity would have any effect at all on the process of preparation and presentation of expert evidence (which is not in any event likely), it would tend to ensure a greater degree of care in the preparation of the initial report or the joint report.”
The dissenting judgments
Lord Hope and Lady Hale dissented. Both disagreed with the approach taken by the majority of reviewing the justification for the immunity. The rule was longstanding and they considered that the correct approach was to decide whether an exception to that longstanding rule could be justified in the circumstances of this case. They thought that reform of the law on immunity in general was better left to Parliament.
Whilst no doubt the vast majority of experts are already highly professional in their approach to the giving of opinions and advice, the removal of expert immunity highlights the need for experts to ensure that they are entirely comfortable with the opinions they give; that they are alive to the risk of adapting or altering their opinions under pressure from clients, or their legal representatives; and that they take particular care when involved in the process of meeting with any opposing expert and agreeing a joint report. In the latter case, it is clearly vital for experts to explain fully to their clients the reasons for any proposed departure from any earlier opinions, before signing any joint experts’ statement or making any concessions on their client’s behalf.
Parties may well find that, in future, their experts’ views and opinions are less bullish and more caveated. Whilst this might be frustrating at the time, it may have the effect of promoting more accurate and flexible experts’ reports (on both sides of the litigation) and encouraging less entrenched positions; potentially making disputes easier and quicker to resolve.