Silence the witness

Should an expert witness be immune from professional negligence suits? This is the matter that seven Supreme Court Justices will hear debated this week.

Such is the importance of the issue that the case leapfrogged the Court of Appeal at the suggestion of Mr Justice Blake, who heard the case in the High Court.

Finding himself restricted by current case law, Blake J was forced to throw the claim out last January, but in his ruling he stated: “I conclude that there’s a substantial likelihood that, on re-examination by a superior court with the power to do so, it will emerge that the public policy justification for the [witness immunity] rule cannot support it.”

The case has its roots in a straightforward road traffic accident claim. The defendant in the current case, clinical psychologist Dr Sue Kaney, who is represented by Berrymans Lace Mawer partner Jason Nash and Four New Square’s Patrick Lawrrence QC, was instructed as an expert witness for the claimant in a personal injury claim.

At issue was whether claimant Paul Wynne Jones was suffering post traumatic stress disorder (PTSD). Originally Kaney supported his claims, while the defendant argued that his symptoms had been exaggerated.

However, after speaking with the defendant on the phone, Kaney switched sides and signed a joint statement supporting the defendant’s expert witness.

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”.

That said, it emerged during the High Court hearing before Blake J that Kaney had signed court documents without first reading them and that she maintained her view that Wynne Jones suffered from PTSD.

Nevertheless, the road traffic accident claim eventually settled for a significantly lower sum than it would have had she not switched sides. Consequently, in April 2009, Wynne Jones launched a professional negligence claim against her.

Responding to that claim, Kaney pled witness immunity from suit as dictated by the 1999 case Stanton v Callaghan.

The expert witness immunity rule has traditionally been justified by reference to the public interest in expert witnesses giving truthful and fair evidence in court, without fear of being sued by a party whose case is lost.

In 2000, the House of Lords removed the barriers that protected counsel from suits in Hall v Simons. Wynne Jones’s counsel, Hill Dickinson partner Paul Walton and Crown Office Row’s Roger ter Haar QC, argue that this decision means the immunity rule for expert witnesses cannot be maintained.

Furthermore, ter Haar suggests, expert witness immunity is inconsistent with the right to a fair trial enshrined by Article 6 of the European Convention on Human Rights.

Under the current system expert witnesses only face sanctions from the judiciary, such as restricting recoverable costs or dismissing the evidence altogether, but that does not afford the paying parties any right to redress.

The ruling given by Supreme Court president Lord Phillips, who is chairing the seven-strong panel hearing the case will inevitably have far-reaching consequences for the personal injury community.

The most desirable of these, say lawyers familiar with the case, will be the increased professionalism of expert witnesses who can earn themselves a lucrative income from appearing in such cases.