The recent judgment of the Supreme Court in Jones v Kaney abolishing expert’s immunity from suit has been well publicised but what impact could it have on claims against solicitors?
The claim arose from Dr Kaney’s instruction to act on behalf of a claimant in a personal injury claim. Dr Kaney, a consultant clinical psychologist, was instructed to report on the psychiatric consequences of the claimant’s accident.
Dr Kaney signed up to a joint statement following a telephone conference with the opposing expert. The claimant alleged this was damaging to his claim and forced him to settle it at an undervalue. The issue before the Supreme Court was whether Dr Kaney, and more importantly expert witnesses in general, should continue to enjoy immunity from suit.
Giving the lead judgment, Lord Phillips (Lord Hope and Lady Hale dissenting) held that:
- An expert witness owes duties in contract and tort to act with reasonable skill and care.
- An expert has an overriding duty to the court. Since the expert is usually instructed to perform their duties in accordance with the CPR, duties to the court and the client co-exist.
- Clients rely on their expert to give skilled opinion in determining whether to bring or defend proceedings, in considering settlement values and in appraising the risks of proceeding to trial.
- Traditional justifications for maintaining experts’ immunity (such as experts’ reluctance to provide evidence, ensuring experts give full and frank evidence and providing protection from vexatious litigants) are no longer viable.
- Anyone providing professional services is at risk of being sued and they customarily insure against that risk. Experts should be no different.
To be found to have acted negligently an expert must fall below the standard of care of a reasonably competent expert. The circumstances of Jones v Kaney were particularly extreme. We anticipate that it will be difficult for claimants to establish negligence in many cases. For example, the court encourages joint discussions between experts to narrow issues. It is not negligent for an expert to change his or her view on a particular point, provided there is good reason to do so.
What are the implications for solicitors and their insurers? Where allegations are made against an expert, there is a certain inevitability of subsequent attacks on the rest of the client’s legal team, particularly the instructing solicitors. Claims for contribution against solicitors could arise from:
- Failure to identify an expert with the correct expertise.
- Inadequate instructions.
- Failure to pass on relevant information.
- Failure to thoroughly check and test an expert’s evidence before advising the client to rely upon it.
- Failure to provide the expert with sufficient time to prepare a report, joint meeting or trial.
- Failure to advise the client about any restrictions on the expert’s level or scope of insurance cover.
While this list is not exhaustive, it is illustrative of how the decision may increase claims against solicitors. However, the corollary is also true with the door now being opened for solicitors to bring contribution claims against their experts. Only time will tell if a flood of claims will follow. What is clear is that the court’s decision in Jones v Kaney has potentially far-reaching consequences.