Keeping up with the Joneses
30 March 2011 | By Katy Dowell
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It is not in the public interest for expert witnesses who appear in court to be immune from law suits, the Supreme Court ruled today.
The ruling has been welcomed by litigators who say the seven Supreme Court justices who decided the outcome of Jones v Kaney have in one ruling professionalised the expert witness industry.
As Hogan Lovells partner Nicholas Cheffings puts it: “It’s difficult to justify the proposition that people who are being well paid for their expert services can be allowed to walk away from the consequences of their incompetence.”
In this case defendant Dr Sue Kaney was not accused directly of negligence, but she did allegedly impact the appellant’s settlement in a separate road traffic accident claim.
In his original personal injury claim appellant Paul Wynne Jones instructed Dr Kaney as his expert witness to support claims that he was suffering from post-traumatic stress disorder (PTSD). Originally Kaney supported his claims, while the defendant argued that his symptoms had been exaggerated.
After speaking with the defendant over the phone, Kaney opted to switch sides and lend her full support to the defence.
Wynne Jones, she said, was “very deceptive and deceitful in his reporting”, adding that he “denied any previous psychological trouble or past accidents, which is inconsistent with the records or other reports”.
Liability had been settled in the original case and only quantum remained an issue.
However, with Kaney’s evidence supporting the defendant’s and the claimant’s request for a new witness rejected, Wynne Jones was forced to accept a lower settlement.
In April 2009, Wynne Jones instructed Hill Dickinson partner Paul Walton to launch a professional negligence claim against the expert witness. Walton brought in Crown Office Chambers’ Roger ter Haar QC to convince the High Court that expert witness immunity was out of step with the Article 6 of the European Convention on Human Rights.
In response, Kaney instructed Berrymans Lace Mawer partner Jason Nash and Four New Square’s Patrick Lawrence QC.
At the first instance, Mr Justice Blake struck out the claim on the basis that expert witnesses are immune from civil suit as confirmed in the Court of Appeal’s decision in Stanton v Callaghan (2000).
However, in Blake J’s view, the case involved a point of law of general public importance so he granted a leapfrog certificate under section 12 of the Administration of Justice Act 1969, and the case was referred straight to the Supreme Court.
In his substantive ruling upholding the appeal Supreme Court president Lord Phillips stated: “It wouldn’t be right to start with a presumption that because the immunity exists it should be maintained unless it’s shown to be unjustified.
“The onus lies fairly and squarely on the respondent to justify the immunity behind which she seeks to shelter.”
And this the defendant was unable to do.
Would exert witnesses be afraid to come forward if they were at risk of future lawsuits? The Supreme Court said no.
Is immunity necessary to ensure that expert witnesses give full and frank evidence to the court? The Supreme Court said no.
Will a diligent expert witness be harassed by vexatious claims for breach of
duty? The Supreme Court said no.
As Phillips SCJ highlighted, there are lessons to be learned from the position of advocates who were, until 2000, immune from suit in order to ensure that they were not inhibited from performing their duty to the court.
“Removal of their [barristers’] immunity has not in my experience resulted in any diminution of the advocate’s readiness to perform that duty,” the judgment stated.
“It would be quite wrong to perpetuate the immunity of expert witnesses out of mere conjecture that they’ll be reluctant to perform their duty to the court if they’re not immune from suit for breach of duty.”
Not all the justices agreed. Lord Hope SCJ and Lady Hale SCJ dissented, saying the matter in hand was whether an exception to the witness immunity rule could be justified. “It’s impossible to say what effect the removal of immunity will have, either on the care with which the experts give their evidence, or upon their willingness to do so,” Lady Hale said.
Litigators, however, believe it is sensible for expert witnesses to be answerable to their clients.