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Supreme Court ends immunity of expert witnesses from civil actions

4 April 2011

The Supreme Court has abolished the immunity of expert witnesses from civil actions relating to the evidence they give in court, an immunity enjoyed for more than 400 years.

Experts will continue to be protected from libel actions by absolute privilege and all other witnesses will retain their general immunity.

Lord Hope, the deputy president, dissented, as did Lady Hale, who said it was “irresponsible to make such a change on an experimental basis”.

Delivering the leading judgment in Jones v Kaney [2011] UKSC 13, Lord Phillips said the principle of immunity for expert witnesses dated back to 1585, long before the development of the modern law of negligence.

Lord Phillips said the immunity had its origins in a “perceived tendency on the part of disgruntled litigants” to bring libel proceedings against people who gave evidence against them.

He said that in Hall v Simons [2000] UKHL 38, the House of Lords had “swept away the advocate’s immunity from liability in negligence”.

Lord Phillips went on: “There is here, I believe, a lesson to be learnt from the position of barristers. It was always believed that it was necessary that barristers should be immune from suit in order to ensure that they were not inhibited from performing their duty to the court.

“Yet removal of their immunity has not in my experience resulted in any diminution of the advocate’s readiness to perform that duty.

“It would be quite wrong to perpetuate the immunity of expert witnesses out of mere conjecture that they will be reluctant to perform their duty to the court if they are not immune from suit for breach of duty.”

Lord Phillips questioned whether the fear that if experts were no longer immune they might find themselves the subject of vexatious claims.

“The litigant without resources will be unlikely to succeed in persuading lawyers to act on a conditional fee basis,” he said.

“A litigant in person who seeks to bring such a claim without professional support will be unable to plead a coherent case and will be susceptible to a strike out application.

“For these reasons I doubt whether removal of expert witness immunity will lead to a proliferation of vexatious claims.”

Lords Phillips allowed the appeal by Jones, who wanted to sue Kaney, a clinical psychologist, following a serious motorbike accident. Lords Brown, Collins, Kerr and Dyson agreed.

However, Lord Hope and Lady Hale dissented. Lord Hope said any reform of the law should be dealt with by parliament, following a report from the Law Commission.

He was particularly concerned at the impact of the end of immunity on criminal and family cases.

“Some experts may be robust enough to withstand the risks and in most cases, no doubt, the risks they face will be minimal,” Lord Hope said. “But one cannot assume that this will be so for everyone.

“And it is not the robustness of the witness that is the problem. It is the risk of the expense and distress of harassing litigation at the instance of an aggressive client which in some cases, given the vagaries of human nature, may be quite obvious.”

Mark Solon, managing director of Bond Solon, said expert witnesses who charged should be accountable for the opinions they gave.

“I hope this will improve standards and potential litigation will be the spur for better expert evidence,” he said.

“All experts must know how to be an expert witness. There is no room for the amateur expert.

“Any solicitor can be sued. Does that stop him from being a solicitor? Nobody should say: ‘I’m not going to be an expert because I could be sued’. Only wimps will withdraw.”

Ian McConkey, professional risks partner at national firm Beachcroft, said insurers should consider the content of their policy cover for expert witnesses and its terms in the light of the judgment.

“Experts will need to ensure their indemnity cover fits the work they undertake,” he said.

“Insurers and experts alike, however, may take comfort that the abolition of advocates’ immunity ten years ago has not led to a major rush of civil claims and it is far from clear that the situation will be greatly different with experts.”

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