18 March 2019 - Article
The Supreme Court, in a 5-2 majority decision, has abolished the immunity from civil suit that expert witnesses had previously enjoyed in relation to their participation in legal proceedings (civil and criminal).
Expert witnesses can now be sued in negligence for the views that they express at any stage of the litigation process. The distinction that did exist between work done at the early stages of a claim which was actionable and work done in the later stages relating to the evidence to be given at trial, which was not, no longer exists.
Facts of the case
Mr Jones, a motorcyclist, was knocked down by a drunk, uninsured and disqualified driver. He sustained serious physical injuries as well as Post Traumatic Stress Disorder (‘PTSD’). In his claim for damages he relied on the report of a consultant clinical psychologist, Dr Kaney, who confirmed that at the relevant time he was suffering from PTSD. This view was not shared by the defendant’s expert and so the District Judge ordered that the two experts hold discussions and prepare a joint statement.
The experts discussed the situation by telephone and the defendant’s expert prepared a draft joint statement which Dr Kaney signed without amendment or comment.
The joint statement was damaging to Mr Jones’ case and concluded, amongst other things, that he was not at the time suffering from PTSD.
When Mr Jones’ solicitor asked Dr Kaney to explain the discrepancy between her earlier assessment and the joint statement, she said that the joint statement had been drafted by the opposing expert and did not reflect what had been agreed between them. However, she felt under some pressure to sign it even though it did not reflect her view that Mr Jones was suffering PTSD at the material time. Mr Jones applied for permission to change his expert but the District Judge refused. Consequently, Mr Jones settled his claim for significantly less than he would have done had Dr Kaney not signed the joint statement in the terms she did.
Mr Jones then issued proceedings in negligence against Dr Kaney for signing the statement which did not reflect her views. Dr Kaney applied to strike-out the claim on the basis of expert witness immunity from suit in accordance with the Court of Appeal decision in Stanton v Callaghan .
In Stanton, a structural engineer, acting as an expert, dramatically revised his former opinion in a joint statement and in doing so undermined his client’s case. The client sued for breach of retainer and negligence but failed as the court held that the immunity from suit extended not only to the expert’s testimony in court but also the preparation of the joint statement which was significantly close to the court process to fall within the scope of protection. As a result of this decision, the Judge in Jones v Kaney had no choice but to grant Dr Kaney’s application to strike-out Mr Jones’ claim in negligence. However, as the case raised issues of public policy, the Judge granted a certificate for a leapfrog appeal to the Supreme Court.
The Supreme Court decision
The Supreme Court considered the history and development of expert immunity and the rationale behind it which was principally to enable experts to give evidence freely and without fear of being sued by disappointed litigants. It was also thought that having immunity avoided future claims where the court had to decide how an expert’s negligence had affected the conclusion of the underlying case and what the consequence of that should be.
The Supreme Court concluded that there was nothing to suggest the loss of immunity would dissuade experts from offering their services. The decision in Hall v Simons  had removed immunity from suit for barristers and that decision had not affected the Bar’s willingness to perform its duty to the court; nor had there been an increase in vexatious claims against barristers. In fact, it was envisaged by the Supreme Court that the quality of evidence might be improved by the removal of immunity. The experts would have a ‘sharpened awareness of the risks of pitching their initial views of the merits of their client’s case too high or too inflexibly, lest these views come to expose and embarrass them at a later date’.
The decision clearly gives rise to a concern that there will be an increase in claims against expert witnesses. But, on the positive side, experts will now need to take greater care in the opinions they give and think carefully about the reasons for adapting or altering them whilst under pressure from their own client or the other side. It is also important to remember that:
- the immunity that has been lost was limited; since the decision of Palmer v Durnford Ford  expert witnesses could be sued for work done primarily for the purposes of ‘advising’ the client;
- following the High Court decision in Phillips v Symes (No. 2)  expert witnesses have been susceptible to the court’s jurisdiction to a personal costs order in respect of the costs of litigation wrongly incurred or thrown away as a result of giving inappropriate evidence as an expert witness;
- since the decision of the Court of Appeal in Meadow v General Medical Council  expert witnesses have been liable to disciplinary sanction where fitness to practice is in issue;
- immunity from suit for defamation as a result of anything said in court remains as the giving of evidence before court is protected by absolute privilege; and
- experts are not exposed to actions for damages by the former opposing party, as the expert will owe no duty to that party.
Given that the threshold for establishing breach of duty is relatively high and experts were already at risk of disciplinary proceedings, costs sanctions and criminal sanctions (experts enjoyed immunity from civil suit only and were never protected against a criminal claim for perjury, perverting the course of justice or contempt of court) arguably the impact of the decision will be less than might at first appear.
As a result of the decision, an expert may find himself faced with a civil claim where his evidence is not founded on reasonable grounds. But if he is doing his job well, he should have nothing to fear.