Jones v. Kaney [2011] UKSC 13 Expert evidence … and should every wrong have a remedy?

It has been a generally accepted principle of English law for centuries that an expert giving evidence in court on behalf of a litigant could not be sued in negligence subsequently by the party instructing him.

The reason for this immunity is that the court requires witnesses before it to give evidence honestly and frankly and not to be inhibited by the threat of legal proceedings, whether for defamation or negligence or breach of contract. What has been a long established principle of the English law has now been overturned by the majority decision of the Supreme Court in the case of Jones v Kaney [2011] UKSC13.

The facts of the case

On 14 March 2001, Mr Jones was stationary on his motor cycle on a road in Liverpool when he was knocked over by a car driven by a Mr Bennett. Unfortunately for Mr Jones, Mr Bennett was drunk, uninsured, and driving while disqualified. Mr Jones suffered various injuries including post traumatic stress disorder.

He brought a claim for compensation. An expert clinical psychologist prepared a report confirming her opinion that Mr Jones suffered from, among other things, PTSD. Unsurprisingly, liability was admitted by the defendant so the question remaining for decision by the court was what amount of damages should be awarded to Mr Jones.

Pursuant to Rule 35 of the Civil Procedure Rules, experts appointed by the claimant and defendant respectively held discussions and prepared a joint statement for the court.

The statement was signed by the expert appointed by Mr Jones but, unfortunately, the joint statement was unhelpful to Mr Jones’ case in that it did not confirm that the experts were agreed that Mr Jones was suffering from PTSD. In fact, Mr Jones’ expert signed a report which confirmed that Mr Jones had exaggerated the symptoms of PTSD. In consequence of this, Mr Jones’ claim was settled for a financial sum said to be significantly less than would otherwise have been achieved if the claimant’s expert had not signed the joint statement. Mr Jones sued his expert.

Comments

In coming to its five to two decision in favour of Mr Jones, the Supreme Court had regard to a variety of factors. These included that advocates can now be sued for a failure to exercise reasonable skill and care in the conduct of litigation on behalf of a client: Hall v Simons [2001] 1AC615 (although an advocate cannot be sued for defamation in relation to statements made in the course of the conduct of legal proceedings: Medcalf v Madell [2002] UKHL27).

One feature in the thinking of the Court was the suggestion that if expert witnesses could be sued in respect of advice or testimony given on behalf of their client, expert witnesses would be hard to find and would be reluctant to give their evidence “freely and frankly”. This proposition was rejected by Lord Phillips. He considered the analogy of the previous immunity of the advocate from  liability in negligence and the fact that this immunity was “swept away” by the case of Hall v Simons. The position of an expert witness cannot be said to be identical to that of an advocate representing his client at a trial. However, there are some similarities. The expert witness and the advocate both expect to be paid in respect of the services they provide for the benefit of the client. Both the expert and the advocate have duties to the court which, on occasion, will be inconsistent with the concept of at all times presenting the client’s case in the best possible light.

It is of interest to note that two of the Supreme Court Judges dissented from supporting the majority in allowing the appeal by Mr Jones.

Lord Hope focussed on the need to ensure that witnesses are not deterred from giving evidence and speaking completely freely when doing so. He pointed out that the rule affording immunity to witnesses giving evidence in court was one of long standing. He referred to the “formidable body of authority which should not be lightly disregarded”. He was concerned also with the “fuzzy edges” point i.e. where to draw the dividing line between those matters in respect of which the expert was immune from being sued and those where he did not have such immunity. He raised the question of criminal proceedings. Is an expert called by a defendant at a criminal trial to lose the immunity from being sued by a disgruntled client? His opinion, shared by Lady Hale, was that the lack of a secure principled basis for removing the immunity from expert witnesses, the lack of a clear dividing line, and the uncertainties that will arise if the immunity is removed, all pointed to a conclusion that the removal of experts’ immunity from suit was a matter to be decided by Parliament and not by the court.

The fact that the case was heard by 7 Supreme Court Judges demonstrates the significance of the matter to the Court. The fact that the Judges were split 5:2 shows the difficulty of the issues to be decided. Even though the majority were in favour of allowing the appeal, there remains the lingering concern that the majority may well have opened up the proverbial “can of worms”.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

Briefing tags