Key Points:

UK Supreme Court abolishes the long-standing rule that expert witnesses are immune from suit

On 30 March 2011, the UK Supreme Court delivered its judgment in Jones v Kaney [2011] UKSC 3. The issue before the UK Supreme Court was whether public policy justifies retaining a long-standing rule that expert witnesses were immune from suit arising out of their participation in civil proceedings.

The majority of the Supreme Court was of the view that immunity from suit for breach of duty that expert witnesses have enjoyed in relation to their participation in legal proceedings should be abolished. This article will consider the potential ramifications of this decision for parties and experts who use international arbitration as their mechanism of resolving disputes.

Background

The case arose out of a traffic accident in which the appellant, Mr Jones, was knocked off his motorcycle by a car driven by Mr Bennett. Mr Jones brought a personal injury claim against Mr Bennett on the basis that he had suffered from significant physical injuries arising from the accident. Since Mr Bennett's insurer, Fortis, admitted liability, the only issue before the district court was quantum. Mr Jones' lawyers briefed a clinical psychologist, Dr Kaney, to prepare a report on Mr Jones' psychiatric condition. Dr Kaney came to the view that Mr Jones was suffering from a post-traumatic stress disorder as a result of the accident.

Fortis also retained a psychologist who opined that Mr Jones was exaggerating his physical symptoms. The court ordered that the psychologists retained by Mr Jones and Fortis prepare a joint expert statement. Accordingly, the psychologists had a telephone discussion to discuss the matter. Subsequent to this discussion, Fortis' psychiatrist prepared a joint expert statement, which expressed views which were damaging to Mr Jones' case. The joint expert statement was sent to Dr Kaney to review. Dr Kaney signed the joint statement without making any amendments or corrections despite the opinion expressed in the joint statement conflicting with her earlier opinion. Mr Jones contended that as a result of the joint expert statement he settled his claim for significantly less than would have been appropriate.

Mr Jones brought a professional negligence claim against Dr Kaney. At first instance, this claim was struck out on the basis of a long-standing rule that witnesses, including expert witnesses, are immune from suit in relation to evidence given in UK civil proceedings. The issue before the UK Supreme Court was whether the district court erred in striking out Mr Jones' claim on this basis.

Supreme Court's basis for its decision

The majority of the UK Supreme Court held that the long standing rule that expert witnesses are immune from suit arising from their participation in civil proceedings be abolished. The basis for the majority's decision was:

  • there is no justification for the assumption that, if expert witnesses are liable to be sued for breach of duty, they will be discouraged from providing their services at all. Professional indemnity insurance is available. Professional persons engage in many activities where the possibility of being sued is more realistic than it is in relation to undertaking the role of an expert in litigation;
  • expert witness immunity is not necessary to ensure that expert witnesses give full and frank evidence to the court;
  • there is unlikely to be a multiplicity of suits against an expert witness if expert witness immunity from suit is removed;
  • the consequence of denying expert witnesses the immunity accorded to them will be sharpened awareness of the risks of pitching their initial views of the merits of their client's case too high such that these views come to expose and embarrass them at a later date. The abolition of expert witness immunity would be a healthy development in the approach of expert witnesses to their ultimate task of assisting the court to a fair outcome of the dispute; and
  • the proposition that the removal of expert witness immunity would have a potentially unsatisfactory chilling effect on expert witnesses is inconsistent with the liability to a prosecution for perjury for untruthful evidence and with liability to disciplinary proceedings for unprofessional conduct in the preparation or presentation of expert evidence.

The possible ramification of Jones v Kaney in international arbitration

Experts can play a crucial role in international arbitration. Parties may often decide whether to pursue or defend an arbitration claim purely based on its expert's views on the merits of the claim. Experts can be the key to the success or failure of the claim. The effect of the decision in Jones v Kaney is that experts based in the UK may think twice about whether they wish to become involved in arbitration proceedings as there they are no longer protected by a veil of immunity from suit in the UK.

However, for a party wishing to retain an expert based in the UK who is willing to participate in arbitration proceedings, the party will need to ensure that its agreement with the expert is governed by UK law. The reason for this is so that if a party is unsuccessful in arbitration proceedings and believes the failure is solely attributable to the negligence of its expert, if it wishes to bring a negligence claim against its expert in a UK court, it is at the very least assured that the expert cannot plead a defence of expert immunity from suit since this form of immunity has now been abolished.

For UK experts who are willing to taking part in arbitration proceedings, they will need to ensure that from the outset they are entirely comfortable with the opinions they provide and do not get pressured into providing an opinion solely because it fits the client's purpose. If UK experts are required to provide a joint report with another expert, they should take particular care to ensure that if they are departing from the opinion originally provided to the client, they provide through reasons to the client for doing so to avoid any allegation that they were breaching their duty of care to the client.