Supreme Court abolishes immunity from suit for expert witnesses

Expert witnesses should no longer enjoy immunity from being sued for breach of duty in relation to the evidence they give in court or for the views they express in anticipation of court proceedings, the Supreme Court has ruled.

In Jones (Appellant) v Kaney (Respondent) [2011] UKSC 13 the appellant was hit by a car in March 2001 and suffered physical and psychiatric consequences.

His solicitors instructed the respondent, a clinical psychologist, to prepare a report for his personal injury claim. She said in that report that the appellant had been suffering from post-traumatic stress disorder (PTSD).

Proceedings were then issued and liability admitted. However, a consultant psychiatrist instructed by the defendant suggested that the appellant had been exaggerating his symptoms.

The district judge then ordered the two experts to discuss the issues and prepare a joint statement for the court.

The appellant claimed that the respondent was negligent in that she had signed a statement saying that he had not suffered PTSD and that she had found him to be deceitful in his reporting. The appellant said this had been so damaging to his claim that he had to settle it for a lower sum than he might otherwise have received.

The appellant then brought proceedings against the respondent for negligence, which she in turn applied to have struck out.

The High Court judge was bound by the Court of Appeal decision in Stanton v Callaghan [2001] QB 75 to hold that the respondent enjoyed immunity as an expert witness. The appellant’s appeal went straight to the Supreme Court for a ruling.

By a majority, the Supreme Court concluded that expert witnesses’ immunity from suit should be abolished.

Lord Phillips said the onus lay on the respondent to justify the immunity behind which she sought to shelter. The judge said the primary justification was that without immunity, an expert witness might be reluctant to give evidence that was contrary to his client’s interest if there was a risk that might lead to his client to sue him.

But Lord Phillips suggested that there was no conflict between the duty that the expert owed to the client and the duty he owed to the court.

He added that the case that immunity was necessary to prevent a chilling effect on the supply of expert witnesses was not made out either.

Nor had the removal of immunity for advocates diminished their readiness to perform their duty to the court. “It would be quite wrong to perpetuate the immunity of expert witnesses out of mere conjecture that they will be reluctant to perform their duty to the court if they are not immune from suit for breach of duty,” Lord Phillips said.

Although concluding that immunity from suit should be abolished, the judge said that expert witnesses should continue to enjoy absolute privilege in respect of claims in defamation.

Lord Dyson added that nothing should be intended to undermine the long-standing absolute privilege enjoyed by other witnesses in respect of litigation.

However, Lord Hope and Baroness Hale dissented with the majority's conclusion that the immunity for experts should be abolished.

Lord Hope warned that there was a risk of “worthless but possibly embarrassing and time-consuming proceedings by a disgruntled and disaffected litigant in person”. Insurance cover, if available, was not a universal remedy, the judge added. “And here again one must be careful not to lose sight of the policy choice that was made long ago that, to be effective, the immunity must be fore the protection of all, not just those who might otherwise be liable.”

Baroness Hale agreed. “The object of the rule is to protect all witnesses, the great majority of whom are trying to do a professional job and are well aware of their duties to the court, against the understandable but usually unjustifiable desire of a disappointed litigant to blame someone else for his lack of success in court,” she said.

Baroness Hale also described it as “irresponsible” to make such a change on an experimental basis, arguing that the topic should have been considered by the Law Commission and Parliament.

Philip Hoult