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Experts: Jones v Kaney [2011] UKSC 13

The Supreme Court abolished immunity from suit in negligence of expert witnesses in relation to their participation in legal proceedings.

The Claimant brought a claim for personal injury against F. His solicitors instructed the Defendant, a clinical psychologist, to prepare a medical report. The Defendant subsequently signed a joint statement with F's medical expert which was highly damaging to the Claimant's case. As a result, the Claimant settled the claim for substantially less than he might otherwise have obtained.

The Claimant brought a claim in negligence against the Defendant. The Defendant did not dispute that her actions had been negligent but sought to rely on her immunity from suit as an expert witness as established by the Court of Appeal in Stanton v Callaghan [2000] QB 75. The High Court Judge found himself bound by that decision and struck out the claim.

The Claimant's appeal against that order came directly to the Supreme Court, as a point of general public importance, pursuant to s. 12 of the Administration of Justice Act 1969.

The Supreme Court held (Lord Hope and Lady Hale dissenting) that the immunity from suit of expert witnesses in litigation should be abolished. The decision does not affect the absolute privilege that they enjoy in respect of claims in defamation [62].

Lord Phillips (with whose reasoning Lords Collins and Kerr agreed) stated that it was not right to start with a presumption that because the immunity existed it should be retained. Rather the onus lay on the Defendant to justify the immunity behind which she sought to shelter.

The Defendant's main justifications for retaining the immunity were that it was necessary to ensure that expert witnesses would be prepared to give evidence and that such witnesses would be reluctant to give evidence contrary to their client's cases if there was a risk they could be sued.

The majority of their Lordships were unconvinced; particularly since the abolition of barristers' immunity by the House of Lords in Arthur J S Hall & Co v Simons [2002] 1 AC 615 did not appear to have had any noticeable detrimental effect. In the absence of any justification for retaining the immunity, it would be abolished. The appeal was therefore allowed.

Winston Jacob / 1st May 2011


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