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I recently spoke at the ACE Annual Conference on the “end of expert immunity” and thought I would follow it up with a brief article for those of you who were unable to attend. The case of Jones v Kaney and the ramifications of the Court of Appeal decision continue to be reviewed and dissected by the legal press.
In Jones v Kaney [2011] UKSC 13, the Supreme Court ruled that expert witnesses should no longer be immune from suit for negligence. Their decision confirmed that experts can now be sued for providing negligent expert evidence in the same way they can be pursued if they are negligent in respect of any other services that they provide. In giving judgment, the Court of Appeal overturned the protection afforded to experts for more than 400 years and many commentators believe it is another step on the way to removing immunity for all types of witnesses.
The reality is that most experts are extremely competent, as well as being honest and conscientious in their role of giving evidence, providing expert opinion and writing expert reports. However, the decision does now mean that where an expert has caused his client to suffer loss as a result of the expert’s negligence or incompetence, then that client will no longer be left without a remedy.
The crux of this case lay in a straightforward road traffic accident claim. The defendant, Dr Sue Kaney, was appointed as an expert witness by the Appellant in the original injury claim. The claimant was said to be suffering from post-traumatic stress disorder (PTSD). Originally, Dr Sue Kaney supported his claims, but following a conversation on the telephone, she decided to sign a joint statement supporting the defendant’s expert witness opinion. As a result of the change by the expert, the dispute was allegedly settled for an amount significantly lower than it would have been had she not “changed sides”. Subsequently, when Jones commenced a professional negligence claim against her, in response to the claim, Dr Kaney pleaded immunity from suit. The case eventually reached the Supreme Court which overturned the original ruling (by a majority of 5:2) thus removing the protection of expert witnesses that had been in place for centuries.
The lead judgment was delivered by Lord Phillips (with whom Lords Brown, Collins, Kerr and Dyson agreed). Whilst the narrow issue examined related to the preparation of a joint statement, the majority recognised that the appeal raised important issues of principle. One issue was whether public policy remained justified in giving expert witnesses immunity from liability in the performance of the expert witness role. Lord Phillips in commenting on this point said that the onus lay “fairly and squarely” on the Respondent to justify the immunity behind which he sought to shelter. The Lords commented that the general rule is that every one should have a remedy, and that any exception to this rule had to be justified as being in the public interest.
It has consistently been argued that without immunity, an expert may be reluctant to give evidence that is contrary to his/her client’s interest. However, the Lords thought that the removal of immunity was unlikely to deter expert witnesses from giving evidence and referred to the fact that experts are already at risk of professional disciplinary proceedings as a result of incompetent evidence and were comforted by the fact that such a threat has not served to deter individuals from being willing to assume the role as expert witness. In addition, the view that the removal of immunity would encourage experts to tailor their evidence, was counteracted by the fact that the removal of immunity from barristers had not caused them to cease to comply with their duty to the court and therefore there is no reason why experts should be any different. As indicated earlier not all the Lords share the view that expert immunity should be dispensed. The dissenting voices, explained that there should be a compelling reason to remove such a long standing immunity and that in their view there was no compelling reason at this time and therefore immunity should remain.
Most readers will be aware that within the construction sector, expert witnesses play an important role. Expert witnesses are often required to provide long and detailed reports and engage in painstaking and detailed reviews of evidence when producing their opinion and advising their client. As I have said earlier, much of this work is done by experienced and competent experts, many of whom are leaders in their field. However, the current state of the economy has meant that some construction professionals have seen expert witness work as a way of increasing their income, with relatively little risk. However, this case is a stern word of warning, and means that such construction professionals should now be aware that they will be potentially liable to their clients for a breach of duty. So what can the prudent expert do?
(i) Most expert witnesses have professional indemnity insurance, but expert witnesses should certainly review their insurance policy firstly to ensure that they have appropriate cover for their activities as expert witness and secondly to ensure that they have a sufficient level of cover should they be pursued.
(ii) Expert witnesses should give some thought to whether or not they should be limiting or excluding their liability by contractual terms. In my experience, most of the larger practices which have expert witness teams have their own terms and conditions. Many larger practices have limitations on liability. However, this is not true for the smaller practices. Of course, any such limitation or exclusion will have to comply with the relevant legislation in order to be accepted.
As a result of this decision, it has been suggested that irrespective of the Law Lords’ views there may now be a decrease in the supply of experts. I have to say that I do not share that view, although I am hopeful that there will be a decline in the “bullish” expert willing to give strong unequivocal advice at an early stage of a dispute, only to retract from that position at a later stage in the litigation. The risk of a claim may give such experts more “food for thought”, and result in them being more cautious and considered in their early advice.
The Future
In reality, will things change? Certainly for the good and competent expert, I would think not. Lord Dyson stressed that if the expert gives an “independent and unbiased opinion, which is in the range of reasonable expert opinions, he will have discharged his duty to the court and to his client and therefore have nothing to fear”. However, unfortunately expert witnesses will have to be alive to claims by frustrated and disappointed litigants and I would have thought that the role of joint expert may be a little more challenging in this context!
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