News

UK Supreme Court abolishes immunity for expert witnesses

BMJ 2011; 342 doi: https://doi.org/10.1136/bmj.d2096 (Published 31 March 2011) Cite this as: BMJ 2011;342:d2096
  1. Clare Dyer
  1. 1BMJ

The United Kingdom Supreme Court has abolished the longstanding immunity expert witnesses have enjoyed from being sued for negligence, in a landmark judgment.

By a five-two majority, the UK’s highest court has swept away the rule that negligence claims cannot be brought against expert witnesses over anything said in court or in the preparation of reports for court proceedings.

The case was brought against a consultant clinical psychologist but will apply to all sorts of experts, including medical experts. Those who give expert evidence in court cases will now be well advised to carry insurance against negligence claims.

Paul Wynne Jones sued psychologist Sue Kaney, his own expert witness in a road traffic accident case, claiming that he had to settle the case for significantly less than expected as a result of her negligence. The claim was dismissed by the High Court because it was bound by an earlier Court of Appeal judgment upholding the immunity.

The case “leapfrogged” the Court of Appeal and went directly to the Supreme Court where it was heard by a panel of seven judges instead of the usual five.

Dr Kaney’s original report said Mr Jones had post traumatic stress disorder (PTSD) but the psychiatrist appointed by the driver’s insurers disagreed and thought he was exaggerating his symptoms. A judge ordered the two experts to get together and agree a joint report and after a telephone discussion the psychiatrist drew up the report and sent it to Dr Kaney.

She signed it without amendment, even though it stated: “Dr Kaney found Mr Jones to be very deceptive and deceitful in his reporting” and said that both experts agreed his psychological condition was no more than an adjustment reaction and not PTSD.

She later said that the joint statement did not reflect what she had said in the telephone conversation but she had felt under some pressure in agreeing it. Mr Jones’s solicitors were refused permission by the court to instruct another expert.

Giving the lead judgment, Lord Phillips, president of the Supreme Court, said the rule was that no wrong should be without a remedy and the onus was on Dr Kaney to justify the immunity behind which she sought to shelter.

Expert witnesses owe an over-riding duty to the court, as well as their duty to the party retaining them. It was argued that without immunity, an expert witness might be reluctant to give evidence that was against his client’s interests, if that might lead his client to sue him.

But Lord Phillips suggested there was no conflict between the duties owed to the client and to the court. Nor were fears that stripping away immunity would lead to a shortage of expert witnesses. Predictions that there would be flood of cases against barristers after they lost their immunity 10 years ago had not been realised.

Lord Hope and Lady Hale, who dissented, said such a change in the law was a matter for parliament after consideration by the Law Commission, rather than the court. Lady Hale added: “To my mind, it is irresponsible to make such a change on an experimental basis.”

Mark Solon of Bond Solon, which trains expert witnesses, said: “All experts must make sure they do a thorough job. This judgment marks the end of the amateur expert.”

Notes

Cite this as: BMJ 2011;342:d2096

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