In a landmark decision (Jones v Kaney), the Supreme Court has overturned the long-established principle that an expert witness is immune from being sued over evidence given in court, except in respect of defamation suits.
The decision was reached in relation to a personal injury case, but applies to all areas of litigation including, for example, to medical experts presenting evidence in disability discrimination claims before the Employment Tribunal.
Mr Jones attempted to sue Ms Kaney, the clinical psychologist appointed by his solicitors to report on his condition following a serious road accident. He believed that her negligence when called upon to produce a joint expert report, in conjunction with a consultant psychiatrist appointed by the insurance company contesting the seriousness of his injuries, had greatly damaged his claim. After speaking with the other expert witness on the telephone, she had signed a report drafted by him without amendment or comment. As the joint report contradicted Ms Kaney’s own findings and called into question Mr Jones’s honesty, the compensation awarded him was far lower than expected.
The High Court ruled that as an expert witness Ms Kaney had immunity from a claim for negligence. However, as the case involved a point of law of general importance, Blake J allowed an appeal directly to the Supreme Court.
The Supreme Court held, by a 5:2 majority, that the immunity from suit for breach of duty enjoyed by expert witnesses taking part in legal proceedings should be abolished. Lord Phillips, giving the leading judgment, dismissed the argument that without immunity experts would be apprehensive about giving their honest opinion, particularly where this has altered over time, if this proved adverse to the case of the client. Expert witnesses have a duty to give their evidence honestly and to assist the court on matters relevant to their area of expertise. In Lord Phillips’ view, it is ‘paradoxical to postulate that in order to persuade an expert to perform the duty that he has undertaken to his client it is necessary to give him immunity from liability for breach of that duty’.
Furthermore, it would be wrong to perpetuate the immunity enjoyed by expert witnesses out of mere conjecture that they would be reluctant to perform their duty to the court if they were not immune from suit for breach of duty. Lord Phillips drew a comparison with barristers, whose immunity from being sued over the way they handle cases in court was abolished in 2001. Removal of their immunity had not resulted in any diminution of their readiness to perform their duty, nor did the move result in large numbers of law suits with no merit.