Expert witnesses will no longer have the protection of immunity from a claim against them in negligence. In the decision of Jones v Kaney, the Supreme Court has abolished the immunity, the origins of which date back to 1585.
The decision entirely removes the protection previously afforded to expert witnesses in civil and criminal cases for out of court statements (ie experts' reports) and evidence given in court. As a result, expert witnesses will have to consider their actions and advice against the backdrop of possible future claims being made if they act below the required standard.
Background – the facts of the case
Mr Jones was injured when he was knocked down by a driver who was drunk, uninsured and disqualified from driving. As a result, Mr Jones suffered from psychological injuries.
Mrs Kaney was instructed as an expert witness (a consultant clinical psychologist) and reported in July 2003 that Mr Jones was suffering from PTSD. Proceedings were commenced and liability was admitted by the other side. After it was ordered that a joint experts' report be prepared, Mrs Kaney conducted a meeting over the phone with the other expert, retracted the view that Mr Jones was suffering from PTSD and contended that he had exaggerated some of his symptoms. As a result, Mr Jones was forced to settle for a significantly lower sum than if Mrs Kaney had not signed the joint report.
Mr Jones subsequently brought a claim against Mrs Kaney for professional negligence. Mrs Kaney pleaded that she was immune and that the claim should be struck out. The case ultimately reached the Supreme Court.
The decision
Most disputes settle before they reach court and so the principal effect of the previous immunity of experts was to prevent the client from suing for breach of duty where the expert's negligence was alleged to have adversely affected a decision to settle a case. This offended against the principle that where there is a wrong there must be a remedy. The starting point for the Supreme Court therefore had to be that the existence of any immunity had to be clearly justified.
It was concluded (by majority) that there was no compelling justification for the immunity to continue and that it should be abolished. Some of the majority pointed to the similarity between the expert's duty and an advocate's duty to their clients (for some time barristers also held the same immunity from claims) and were very much influenced by the abolition of the advocates' immunity several years earlier.
Implications of Jones v Kaney for experts
More pressure on experts
It remains to be seen whether in practice this decision will make experts more wary of the extent of the advice they give, the giving of their advice in terms of a report and the strength of the views they are willing to give.
In the Supreme Court Lord Brown stated that experts should now have a:
"sharpened awareness of the risks of pitching [their] initial views of the merits too high or too inflexibly."
Lord Collins also said that the decision will:
"ensure a greater degree of care in the preparation of the initial report or the joint reports."
Will the lack of legal immunity lead to fewer professionals acting as experts?
An obvious immediate implication could be that the number of professionals willing to act as expert witnesses is significantly reduced in the future as the potential for liability is now faced. However, those engaged in professional services owe a duty of care to their own clients and are thus exposed to a certain degree of risk in any event, for which they take out insurance. The increase in the scope of that risk could perhaps mean only an increase in the scope of insurance cover required.
The practical consequence could be that professional indemnity premiums for experts increase, a cost which experts may have to pass on ultimately to their clients. The initial terms of engagement of experts may necessitate tighter exclusions of liability and therefore the role of solicitors in helping clients choose the right expert may become even more crucial.
It is worth noting also that the abolition of advocates' immunity has not resulted in any apparent reduced willingness of barristers to enter that profession.
Will this decision open the floodgates?
A further potential significant implication is that the floodgates have now been opened to a raft of new claims against experts where disgruntled and frustrated parties to litigation lose a case and try to seek recompense from elsewhere. There will no doubt be claims brought as a result of this decision but it is anticipated that they will only be where the merits justify a claim being made.
The Supreme Court recognised that the immunity was a relic of law and one that emerged before experts were paid for their evidence and long before negligence had been codified into the legal system. Lord Philips concluded that unlike previously, "the wronged client will [now] enjoy, rather than have denied to him by rule of law, his proper remedy."
Of course only time will tell in relation to the floodgates opening. Spurious claims may be brought but those without private funding will be unlikely to succeed in persuading lawyers to act under conditional fee agreements.
Although the decision clearly applies to an expert's involvement and advice at any stage of a case, Lord Collins stated that "...it is very hard to envisage circumstances in which performance in the witness box could be the subject of even an arguable case."
Again, we can also look at the legacy from the abolition of immunity of barristers in relation to the floodgates issue; there has been no "flood" as yet from disappointed litigants against their advocates.
Limitation
The date on which Mrs Kaney signed the joint statement (November 2005) is the date on which expert immunity essentially ended. Claims founded on negligence from that time are not yet time barred and will remain so until on or around November 2011.
Conclusion
It seems unlikely that a flood of unmeritorious claims being launched will materialise. As referred to above, this long held immunity can easily be seen as unjustifiable in particular given that experts are paid for their advice and time as any provider of professional services would expect to be remunerated. Where there are good grounds for claims to be brought this can only be the corollary and a "proper remedy" for those who suffer loss when paid for professional services are negligent.
It appears that this tightening up is aimed most particularly at experts who change their mind during the course of proceedings for reasons that cannot be justified. Experts who already act and advise to the standard required (and would not change their views without good reason) may well not need to fear this decision.
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