Immunity for expert witnesses removed

A landmark decision delivered by the Supreme Court has effectively abolished immunity for expert witnesses against claims of negligence in providing evidence for legal proceedings.

The historic decision came in an appeal by motorcyclist Paul Jones who in 2001 was injured after being stuck by the car of a drunk driver. Mr Jones launched a damages claim against the driver alleging significant physical and psychological damage and his solicitors instructed a consultant clinical psychologist, Sue Kaney, to prepare an expert report.

Dr Kaney wrote a report stating that Mr Jones suffered from post-traumatic stress disorder (PTSD) as a result of the accident and proceedings were subsequently issued with the driver admitting liability. Only the amount of damages remained at issue.

But an expert instructed by the defendant’s solicitor alleged that Mr Jones was exaggerating his symptoms and the judge directed the two experts to meet and come to a joint view. Dr Kaney subsequently signed a statement denying that Mr Jones was suffering from PTSD and describing him as deceptive and deceitful.

Mr Jones claimed that this lead to a significantly reduced settlement in his case and he launched a suit against Dr Kaney for negligence in signing the statement, which it was alleged she had not even read.

The case was struck out by a high court judge on the basis of a 2000 Court of Appeal decision reaffirming immunity for expert witnesses but was later referred to the Supreme Court as it was considered of general public importance.

A majority of five out of seven judges on the Supreme Court panel held that public policy could no longer justify the continued immunity of expert witnesses and allowed Mr Jones’ appeal. In delivering the judgement Lord Phillips rejected the argument that experts will be discouraged from providing expert evidence in future, stating:

"All who provide professional services which involve a duty of care are at risk of being sued for breach of that duty. They customarily insure against that risk."

In his view the argument is not significantly different from that for barristers.

"It was always believed that it was necessary that barristers should be immune from suit in order to ensure that they were not inhibited from performing their duty to the court.

"Yet removal of their immunity has not in my experience resulted in any diminution of the advocate's readiness to perform that duty."

Lady Hale, in a dissenting judgement, stated: "To my mind it is irresponsible to make such a change on an experimental basis. This seems to be self-evidently a topic more suitable for consideration by the Law Commission and reform, if thought appropriate, by Parliament rather than by this Court."

Note that members can be reassured that MDDUS provides access to legal representation and indemnity for expert reports and testimony, provided that the individual member is in the correct category of membership. Members can contact our Membership Team on 0845 270 2038 to ensure that they have adequate and appropriate indemnity.

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