Expert Immunity a Thing of the Past

On 30 March 2011, the Supreme Court issued a judgment which signalled the end of over 400 years of immunity from claims for negligence against expert witnesses.

The Claim

Paul Wynne Jones was hit by a car driven by a drunk, uninsured and disqualified driver when stationary at traffic lights in March 2001. Clinical psychologist Sue Kaney was instructed to prepare a report in support of Mr Jones’ damages claim against the driver’s insurers, Fortis, in July 2003. This report stated that Mr Jones was suffering from Post Traumatic Stress Disorder.

Ms Kaney prepared a further report in December 2004 which stated that Mr Jones had some, but not all of the symptoms necessary to warrant a diagnosis of PTSD, and was also suffering from depression.

Fortis instructed a consultant psychiatrist, Dr El-Assra, to produce a report, in which he stated that Mr Jones was exaggerating his physical symptoms. The district judge ordered the two experts to produce a joint report, which was prepared by Dr El-Assra, and signed without comment or amendment by Ms Kaney. This report stated that the psychological reaction to the accident was no more than adjustment reaction. It further stated that Mr Jones was deceptive and deceitful.

Mr Jones’ case was that Ms Kaney’s negligence had led him to settle the claim for significantly less than if Ms Kaney had not signed the joint statement.

The Law

Previous to this judgment, expert witnesses enjoyed a partial immunity against actions in tort for their activities for the substantial purposes of litigation. This immunity was also enjoyed by barristers and solicitors acting as advocates up until the Judgement in Hall v Simons [2001] 1 AC 615, in which the House of Lords found that counsel’s immunity could no longer be justified.

The Judgment

Lords Phillips, Brown and Dyson in their judgments all referred to the first rule of law; namely that a wrong should have a remedy, and pointed out that, where an Expert Witness had been negligent, the immunity in question denied the parties relying on them any remedy.

Concerns had been raised that the removal of the indemnity would have a ‘chilling effect’ on Expert Witnesses giving evidence at all.

It was found that this would not be the case. No ‘chilling effect’ had been experienced when the indemnity was removed for Barristers, and there was no reason to think that Expert Witnesses would cease to comply with their duty to the court, or would begin to tailor their evidence to their client’s favour for risk of suit. In fact, it considered that Experts would be more likely to be measured with their evidence and hold their opinions up to further scrutiny if they were at risk of suit.

Another concern was that there may be a risk of vexatious claims against Expert Witnesses where the party they are representing has been unsuccessful. From a practical point of view, the cost implications of engaging a second Expert Witness in order to comment on the negligence of the first Expert Witness would preclude most vexatious claims from progressing.

The Lords also dismissed any possibility that the removal of immunity would cause a multiplicity of suits.

Five of seven Supreme Court Judges agreed with the reasoning set out above. Amongst the two dissenters, Lady Hale suggested that the correct forum for the removal of this privilege was not the Supreme Court, but the Law Commission or Parliament. Lord Hope argued that the immunity was well established and that there was no compelling reason to remove the immunity.

The Implications

Expert Witnesses should now arrange professional indemnity insurance, although a number of the Judges pointed out that this was most likely already in place, and the level of cover should be checked.

Expert Witnesses may also wish to consider limiting their liability by means of contractual terms, although the client’s agreement to this may be difficult to obtain.

Defamation

It should be noted that these changes do not extend to the Expert Witnesses absolute privilege against defamation claims, which is unaffected by the judgement.

Please note that this information is provided for general knowledge only and therefore specific advice should be sought for individual cases.

For further information, please contact Kenny Friday at