An overdue decision?

Raj Kang reviews a landmark case where expert witnesses have lost their 400-year-old immunity from being sued in civil courts. The full ramifications of this decision are yet to emerge but it is clear that the implications are far-reaching, he says.

In Jones v Kaney Mr Jones allegedly suffered physical and psychological injuries in a road traffic accident on 14 March 2001 when his stationery motorcycle was struck by another vehicle, driven by Mr Bennett. In support of his claim for psychological injuries, Mr Jones’ solicitors commissioned two medical reports from Dr Kaney, a Consultant Clinical Psychologist. Dr Kaney reported that the Claimant was suffering from post-traumatic stress disorder (PTSD).

Liability was admitted but Mr Bennett’s Psychology expert claimed that Mr Jones was exaggerating his symptoms of PTSD. Following a joint experts' meeting between the two Psychology experts, a joint statement was prepared, which Dr Kaney duly signed.

The joint statement was detrimental to Mr Jones’ claim in that it recorded that Mr Jones had not suffered PTSD and Dr Kaney had found him to be deceptive and deceitful in his reporting. Mr Jones’ solicitors sought leave to instruct another expert but the district judge refused. As a result, Mr Jones’ case settled for a lower sum than he might otherwise have been able to achieve had his expert stood by her original opinion.

Dissatisfied with the outcome, Mr Jones then issued proceedings against Dr Kaney for damages for the loss of opportunity to recover the higher damages as a result of her negligence. Dr Kaney applied for the claim to be struck out on the basis that experts had always been afforded immunity from such claims in respect of their preparation of a joint statement for trial and the High Court agreed. The Claimant’s appeal was allowed by the Supreme Court by a majority of 5-2 and they held that the immunity from suit for breach of duty that expert witnesses have enjoyed in relation to their participation in legal proceedings (whether in contract or in negligence) should be abolished.

The Judgement

Lord Philips delivered the leading judgment and the following reasons behind the decision were given:

• Expert witnesses can be distinguished from witnesses of fact – generally speaking, the latter are compelled to give evidence, whereas an expert witness volunteers his services, for which he is remunerated
• The position of an expert witness is analogous to that of a barrister – following the removal of barristers’ immunity, there was little or no justification for preserving it for expert witnesses
• The removal of barristers’ immunity did not result in a raft of vexatious claims as some had initially feared
• The removal of immunity is unlikely to affect how experts perform their tasks or deter them from giving evidence – an expert who is willing to risk the existing criminal sanctions, costs sanctions, and disciplinary proceedings is unlikely to be deterred by the risk of a civil suit
• Every wrong should have a remedy

Implications for Experts

There are clearly ramifications for expert witnesses who engage in the preparation of court reports.

It is not yet clear the grounds upon which an expert can be sued.  It is difficult in this case to see how Mr Jones could have sued for lost damages in respect of his PTSD when the consensus view appeared to be that he had not suffered from PTSD at all. Should the claim be instead for the wasted costs which the Claimant incurred pursuing the psychological claim when it was always destined to fail? Objectively speaking, one would have expected Dr Kaney to have said in her initial report that she did not believe that the Claimant was suffering from PTSD. Whilst, it is not uncommon for experts to be ‘swayed’ by another opinion at joint meeting, it does cause concern when an expert gives a view entirely different from their report.  Whilst the overriding duty for experts is to the Court, they are being independently instructed by someone to give a preliminary view on the merits of the case and are being remunerated to do so. It somewhat defeats the purpose of their instruction if they are then able to entirely change their opinion without any consequences. However, on the other hand, will experts be deterred from reasonably changing their opinion at an experts meeting because they are worried about being sued?

The decision may mean that some expert witnesses are now going to be reluctant to give opinions in cases due to the fear of being sued. We think this is unlikely; the risk of being sued has not stood in the way of others providing professional services – they insure against the risk. Lord Philips was right in commenting that abolition of advocates’ immunity did not lead to a major rush of civil claims. Experts should take some comfort from that.

What Jones v Kaney is likely to do is open the gates for insurers to provide a form of indemnity insurance for such expert witnesses. The downside is this may increase an expert’s fee and the administrative burden on an expert. It remains to be seen whether this will be a disincentive to “would be” new experts agreeing to accept instructions.

Turning to the medico-legal perspective, quite often, cases are robustly defended right up to the experts’ meeting on the basis of the initial report provided by the experts. Substantial costs are incurred on both sides because of reliance on an expert’s opinion. As lawyers, providing an expert report reads logically and appears to cover the key facts, we expect it to be reliable. It is then both disappointing and frustrating when an expert does a ‘u-turn’ at the joint meeting. Cases are then settled which could have been done a lot sooner had the expert expressed their doubts initially. Jones v Kaney has now opened the door to seek a remedy but it remains to be seen whether professionals will want to incur the costs of taking up that option.

Raj Kang is a solicitor at Bevan Brittan.