In April 2011, the Supreme Court handed down judgment in the landmark case of Jones v Kaney. This fundamentally changed the law regarding expert immunity from liability in negligence, which had previously been enjoyed by expert witnesses in civil cases. For over 400 years, expert witnesses had been immune from liability for any negligence arising out of written or oral evidence presented to the courts.
Expert witnesses were afforded immunity for a number of reasons: principally to protect them from harassment after giving evidence in good faith but also to further the interests of justice by ensuring that a witness could give evidence freely and fearlessly. So what changed with Jones v Kaney?
Background to the case
In March 2001, Mr Jones was hit by a vehicle and suffered physical and psychiatric injuries as a result. He intended to pursue a personal injury claim against the driver of the vehicle, so sought medical evidence in support of his claim. Dr Sue Kaney, a clinical psychologist, was instructed to provide her expert medical opinion and concluded that Mr Jones was suffering from post-traumatic stress disorder. The driver instructed his own medical expert, who did not agree with Dr Kaney. This resulted in the judge ordering the two experts to produce a joint statement.
The allegations of negligence against Dr Kaney arose out of her actions in agreeing the joint statement. Mr Jones alleged that Dr Kaney was negligent by signing a joint statement that failed to accurately record her views and the discussions held between the experts. The joint statement was damaging to Mr Jones’ claim and resulted in the matter settling on unfavourable terms. Mr Jones issued proceedings against Dr Kaney seeking damages on the basis that his claim settled at an undervalue as a result of her actions.
The Supreme Court held that the immunity enjoyed by expert witnesses for breach of duty (whether in contract or common law negligence) for their participation in legal proceedings should be abolished. The court concluded that an expert witness provides a service for which they will invariably receive a fee, so if they fail to conduct themselves in a manner befitting a reasonably competent expert, they should face the consequences.
The court also decided that abolition of immunity would not prevent experts from giving evidence that is contrary to their client’s interests because all expert witnesses act in accordance with the overriding obligation to the court, as set out in the Civil Procedure Rules (Part 35.3 (1) and (2)). In effect, the status quo would remain unchanged with experts continuing to discharge their duties to the court in civil matters.
Lord Collins also suggested that expert witnesses no longer required ‘protection’ from court cases in the future, because they can take out professional indemnity insurance and seek to limit their liability by contract.
Although the court was mindful of the desirability of protecting expert witnesses, it concluded that, following withdrawal of immunity for advocates (Hall v Simon ), there had been no noticeable reduction in those who were willing to accept instructions nor had there been an increase in claims against advocates by disappointed litigants. The court drew comparisons between the withdrawal of immunity for expert witnesses and advocates because both accept instructions in civil cases knowing that they may be required to act in a manner that will not advance their client’s claim because of their overriding obligations to the court.
Impact on the legal profession
Jones v Kaney changed a law that pre-dated the modern legal system to which we now turn for expert evidence in many civil matters. So, will this decision have an adverse effect upon the legal system?
It will probably have little impact on the majority of expert witnesses, as they already provide a competent and conscientious service. Therefore, it is unlikely that the court will see an increase in claims by disappointed litigants, but it will also ensure, where an expert witness has caused a client loss through incompetence, that there will be a case to answer.
We can probably rest assured that this ‘landmark’ decision will not actually have a damaging impact on civil litigation, or on the instruction of expert witnesses. However, it is not possible to reach a conclusive view without further guidance from the courts. Over the next 12-18 months, we can expect a number of claims against expert witnesses to reach conclusion. Only then will we be able to measure the impact of withdrawal of immunity fully.
For more information, contact our Professional Negligence team.