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  Expert Witness Immunity abolished

The eagerly awaited decision in the Jones -v- Kaney appeal does away with expert witness immunity

The Supreme Court handed down its judgment in the Jones -v- Kaney appeal at the end of March 2011 (see our previous ewire item for the background of this case and our court report for a fuller summary of the decision in the case).

Lord Phillips gives the lead judgment. The majority hold that the immunity from suit for breach of duty (whether in contract or in negligence) that expert witnesses have enjoyed in relation to their participation in legal proceedings should be abolished.

Majority decision to abolish immunity

Lord Phillips says:

“I conclude that no justification has been shown for continuing to hold expert witnesses immune from suit in relation to the evidence they give in court or for the views they express in anticipation of court proceedings.”

He goes on to say:

“It follows that I consider that the immunity from suit for breach of duty that expert witnesses have enjoyed in relation to their participation in legal proceedings should be abolished. I emphasise that this conclusion does not extend to the absolute privilege that they enjoy in respect of claims in defamation. Accordingly, I would allow this appeal.”

Lord Brown, Lord Collins, Lord Kerr and Lord Dyson agree with Lord Phillips. Lord Brown says:

“… not only do expert witnesses clearly owe the party retaining them a contractual duty to exercise reasonable skill and care but, I am persuaded, the gains to be derived from denying them immunity from suit for breach of that duty substantially exceed whatever loss might be thought likely to result from this.”

He goes on to say that in his opinion:

“… the most likely broad consequence of denying expert witnesses the immunity accorded to them… will be 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. I for one would welcome this as a healthy development in the approach of expert witnesses to their ultimate task (their sole rationale) of assisting the court to a fair outcome of the dispute (or, indeed, assisting the parties to a reasonable pre-trial settlement).”

Lord Collins helps to tie down the scope of this judgment. He says:

“This appeal is concerned only with the liability of the so-called ‘friendly expert’ to be sued by the client on whose behalf the expert was retained. The facts raise directly only liability to be sued for out of court statements, but any immunity in relation to such statements is a necessary concomitant of the immunity for things said in court, and the same principles must apply equally to each.”

and goes on to say there is nothing in this judgement “which affects the position of the adverse expert.”

Lord Collins stresses that defamation claims are still barred:

“The policy behind immunity from suit for defamation is that to allow the possibility of such an action would create a chilling effect, inhibit frankness and bring the trial process into disrepute. Thus there is nothing in the present decision which would enable a client to sue his handwriting expert for slander because in the witness box he changed his mind and expressed the view that the client’s document was a forgery.

As to the effect on the supply of willing expert witnesses, Lord Collins says:

“There is no basis for suggesting that experts will be discouraged from testifying if immunity were removed – most are professional people who are insured or can obtain insurance readily, and those who are not insured can limit their liability by contract.”

Lord Dyson tells us that the loss of immunity extends to all courts:

“I can see no reason to treat expert witnesses who are engaged in criminal and family litigation any differently from those engaged in civil litigation.”

But serious reservations expressed by two judges

But, Lord Hope and Lady profoundly disagree with their judicial colleagues. Lord Hope says, in dismissing the appeal:

“The lack of a secure principled basis for removing the immunity from expert witnesses, the lack of a clear dividing line between what is to be affected by the removal and what is not, the uncertainties that this would cause and the lack of reliable evidence to indicate what the effects might be suggest that the wiser course would be to leave matters as they stand. The Law Commission has recently completed a project in which it addressed the admissibility of expert evidence in criminal proceedings in England and Wales: see Law Com No 325 (HC 829, 21 March 2011 ). The question of immunity was not raised at any stage during its consideration of this issue. If there is a need to reform the law in this area, it would be better to leave it to be dealt with by Parliament following a further report by the Law Commission. As Watson v M’Ewan remains binding in Scotland and witness immunity in Scotland is a devolved matter, the question whether it is in need of reform deserves attention by the Scottish Law Commission as soon as practicable. In this way all the various problems could be addressed after proper consultation and debate.”

Whilst Lady Hale says:

“… it does not seem to me self-evident that the policy considerations in favour of making this exception to the rule are so strong that this Court should depart from previous authority in order to make it. To my mind, it is irresponsible to make such a change on an experimental basis. This seems to me self-evidently a topic more suitable for consideration by the Law Commission and reform, if thought appropriate, by Parliament rather than by this Court.”

Conclusion

The judgment is long and complex. We will be studying it in the coming days and you can be sure we will have much more analysis for you. In the meantime, if you wish to read the judgment yourself you can find it at http://www.bailii.org/uk/cases/UKSC/2011/13.html. We would be interested to hear what you think, preferably by email on immunity@jspubs.com.

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Issue 68
April 2011

Expert Witness Immunity abolished


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