Expert witness immunity against suit falls in landmark Supreme Court decision

In a landmark Supreme Court decision, a panel of seven senior judges has decided that expert witnesses, across the criminal, family and civil courts, should no longer have immunity from claims against them for breach of duty in contract or in negligence. Immunity against slander and libel remain in place.

Although this landmark case did not involve forensic accountancy evidence, the principles apply to all NIFA members giving expert evidence.

In the original case, the claimant, Paul Wynne Jones, sued for damages for personal injury in a road traffic accident. The parties could not agree on whether he suffered post-traumatic stress disorder (PTSD) or whether the symptoms had been exaggerated. The claimant’s solicitors instructed a psychologist. Initially, the expert suggested in her report that he was a victim of PTSD. Later, after a telephone conference between experts, she changed her mind and signed a joint statement that suggested that  the claimant was ‘deceptive and deceiptful’ and that his reaction to the incident was not PTSD. Instruction of a second expert was denied by the Court and the case settled for a considerably lower figure but for the expert signing the joint statement in the way that she did.

The claimant started negligence proceedings against the expert Sue Kaney, seeking damages. She entered no defence to the claim against her on merits, but instead pleaded immunity against suit.

The judge hearing the case, Mr Justice Blake, decided that case law dictated that immunity should stand but granted the claimant a ‘leapfrog certificate’ to allow him to put the immunity question directly to the Supreme Court and it is on that issue that the senior judges have now ruled.

Lord Phillips gave the lead judgement saying that: "I conclude that no justification has been shown for continuing to hold expert witnesses immune from suit in relation to the evidence they give in court or for the views they express in anticipation of court proceedings.”

Phillips LJ added: “It follows that I consider that the immunity from suit for breach of duty that expert witnesses have enjoyed in relation to their participation in legal proceedings should be abolished. I emphasise that this conclusion does not extend to the absolute privilege that they enjoy in respect of claims in defamation. Accordingly, I would allow this appeal.”

The majority of the panel of judges, Lord Brown, Lord Collins, Lord Kerr and Lord Dyson agreed with Lord Phillips.

Lord Collins pointed to where the risk for expert witnesses lay, saying that: “This appeal is concerned only with the liability of the so-called ‘friendly expert’ to be sued by the client on whose behalf the expert was retained. The facts raise directly only liability to be sued for out of court statements, but any immunity in relation to such statements is a necessary concomitant of the immunity for things said in court, and the same principles must apply equally to each.”

Collins LJ made it clear that there is nothing in this judgement “which affects the position of the adverse expert.”

He stressed that defamation claims against experts are still barred, because it could have "a chilling effect, inhibit frankness and bring the trial process into disrepute. Thus there is nothing in the present decision which would enable a client to sue his handwriting expert for slander because in the witness box he changed his mind and expressed the view that the client’s document was a forgery.”

Responding to fears that the judgment would affect the supply of experts willing to offer their services to the Courts as expert witnesses, Lord Collins offered the following reassurance: “There is no basis for suggesting that experts will be discouraged from testifying if immunity were removed – most are professional people who are insured or can obtain insurance readily, and those who are not insured can limit their liability by contract.”

But, two of the judges expressed serious reservations about the removal of expert witness immunity; Lord Hope and Lady Hale stating that they profoundly disagreed with their judicial colleagues.

In dismissing the appeal, Lord Hope argued that: “The lack of a secure principled basis for removing the immunity from expert witnesses, the lack of a clear dividing line between what is to be affected by the removal and what is not, the uncertainties that this would cause and the lack of reliable evidence to indicate what the effects might be suggest that the wiser course would be to leave matters as they stand." He said that any reform in this are of law should be subject to proper consultation and debate and be left to Government aided by the Law Commission.

Lady Hale said that:  “… it does not seem to me self-evident that the policy considerations in favour of making this exception to the rule are so strong that this Court should depart from previous authority in order to make it. To my mind, it is irresponsible to make such a change on an experimental basis. This seems to me self-evidently a topic more suitable for consideration by the Law Commission and reform, if thought appropriate, by Parliament rather than by this Court.”

More analysis will follow but the full text of the judgement can be found at: http://www.bailii.org/uk/cases/UKSC/2011/13.html

In the meantime, any comments and observations would be welcome on this topic by contacting the NIFA office.

ENDS

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