The Supreme Court recently came to the landmark conclusion that expert witnesses should no longer be immune from being sued for the evidence they give in court. In Jones v Kaney the court reasoned that there was no justification for retaining the immunity, which has been in place for over a century, over evidence given both in the witness box and expressed in expert or technical reports. This ruling has important implications for experts who provide their services to the court.
The claimant was involved in a road traffic accident and instructed the expert to prepare a report. In this, the expert concluded that the claimant was suffering from post traumatic stress disorder. The expert subsequently changed her position and signed a joint statement with an opposing expert that suggested the claimant was exaggerating his symptoms. The claimant sued his expert on the basis that he had to settle his claim for less than he would have done had the expert not acted in this way.
Pros and Cons of the Immunity
The main justification for immunity for experts was that it allowed the expert to speak freely and focus on assisting the court rather then fearing action against him from his client. The expert should not feel obliged to back their client even where they have doubts about the strength of their case. The court ruled that, in the interests of public policy, there was no longer a basis for retaining such an immunity. The court advanced the following as the main arguments in favour of their conclusion:-
- all who provide professional services that involve a duty of care are at risk of being sued for breach of that duty and there is no justification for the assumption that witnesses would be discouraged from providing their services if this applied to them also;
- tools such as the oath, cross examination and the threat of perjury limit the concern that an expert may alter their opinion because of potential liability;
- the immunity for advocates was abolished in 2002 and this has had little or no bearing on their readiness to perform their duty to the court or the number of vexatious claims;
- a disaffected litigant would struggle to get their claim off the ground, further limiting the likelihood of vexatious claims; and
- every wrong should have a remedy and to deny a remedy should always be regarded as exceptional.
Consequences of the Decision
Despite the reasoning of the Supreme Court, it does seem justifiable to suggest that, with this change to a law that has been settled since 1905, there may be an increase in civil actions against experts. The full consequences of the decision remain to be seen. Watch this space.