Under UK law, expert witnesses were, until recently, immune from being sued for negligently performing their duties to the Court during litigation. However, in Jones v Kaney [1], the UK Supreme Court decided that expert witnesses should no longer be immune from being sued for negligence in relation to providing their expert opinion, and overturned a longstanding practice.

Mr Jones suffered serious injuries when his motorcycle was struck by Mr Bennett’s car. As Mr Bennett was driving while uninsured, Mr Jones claimed compensation for his injuries from Mr Bennett and the Motor Insurance Bureau (the “MIB”). The MIB appointed Fortis Insurance to defend the case. Fortis admitted liability, so only quantum was at issue.

Mr Jones’ solicitors engaged a Clinical Psychiatrist to determine the extent of Mr Jones’ psychiatric injuries. Fortis also appointed a Clinical Psychiatrist to assess Mr Jones. The two experts disagreed about the true extent of Mr Jones’ psychiatric injuries. Mr Jones’ expert considered that he had suffered PTSD and depression. Fortis’s expert suggested that Mr Jones was overstating his symptoms.

The Court ordered a joint meeting between the two experts, for the purpose of producing a single expert Psychiatric Report. Fortis’s expert drafted the joint Report. Mr Jones’ expert signed the joint  Report, without reviewing or amending it. The joint Report was extremely damaging to Mr Jones’ case. It stated that his psychiatric injuries were no more than an adjustment reaction, and not PTSD or depression. Mr Jones’ expert later admitted that the joint Report did not reflect her true opinion, and claimed she felt pressurised into signing it.

Mr Jones, after settling his claim for considerably less than he had expected to achieve, brought professional negligence proceedings against his own expert. He alleged that she had failed in her duty as an expert witness, because she did not prepare adequately for the joint expert meeting by reviewing her counterpart’s reports, and failed to scrutinise and amend the joint Psychiatric Report before she signed it.

In the High Court, Blake J struck out the claim because, under UK law, the expert witness was immune from being sued. The decision was immediately appealed. The Supreme Court abolished the principle of expert immunity and allowed the Appeal. The maintenance of the principal of expert immunity required clear justification and the Court found no such justification, in this case or generally. Abolishing the immunity would not cause an increase in vexatious claims against expert witnesses, as mechanisms already exist to filter spurious claims and expert evidence would be required to ground such claims. Furthermore, the abolition of barristers’ immunity some years previously did not result in a flood of vexatious claims against barristers.

Expert immunity still exists in Ireland.  As yet, the Irish Courts have not followed Jones v Kaney. Arguably, reform of the law in Ireland may discourage experts from providing their services if they fear potential proceedings for negligence. Therefore, any reform of the law in this country will have to be carefully considered on the grounds of policy, because experts, who are willing to give evidence in contentious cases, are already difficult to find.