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Supreme Court abolishes immunity of experts from civil actions

30 March 2011

The Supreme Court has today abolished the immunity of expert witnesses from civil actions relating to the evidence they give in court.

Expert witnesses 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 that anyone who provided professional services was at risk of being sued for breach of that duty.

He 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.”

He concluded: “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.”

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.”

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Expert witness Courts & Judiciary