Supreme Court rules that expert witness immunity should be removed

Hill Dickinson partner Paul Walton and Crown Office Row’s Roger ter Haar QC have been handed a major victory by the Supreme Court after it ruled that expert witnesses should not be immune from suit for breach of duty.

The judicial panel of seven was chaired by Lord Phillips, president of the Supreme Court. Ruling in the matter of Jones v Kaney, the court overturned the first instance ruling to remove protections afforded to expert witnesses that have been in place for more than 400 years.

The case has its roots in a straightforward road traffic accident claim. The defendant, Dr Sue Kaney, was instructed as an expert witness by the appellant in the original 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.

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.

Today the Supreme Court upheld the appeal by a majority of five to two, with Lord Hope and Lady Hale dissenting.

Lord Philips stated: “Whether professional persons are willing to give expert evidence depends on many factors. I’m not persuaded that the possibility of being sued if they are negligent is likely to be a significant factor in many cases in determining whether a person will be willing to act as an expert.

“Negligence is not easy to prove against an expert witness, especially in relation to what he or she says in the heat of battle in court.”

Berrymans Lace Mawer partner Jason Nash instructed Four New Square’s Patrick Lawrence QC for the defendant.