Suit yourself

The decision of Jones v Kaney, handed down on 30 March, saw the Supreme Court abolish the immunity from suit previously enjoyed by experts retained in civil proceedings. Following this decision, a party who instructs an expert and suffers loss or damage as a result of the expert's negligence can now pursue the expert for damages.

The claim arose following a straight-forward personal injury claim in which a clinical psychologist, Dr Sue Kaney, had been instructed by the claimant, Mr Jones. Following a telephone discussion with an expert instructed by the defendant, Dr Kaney signed a joint statement in which she effectively switched sides.

It later transpired that, at the time of the discussion, she had forgotten key facts which were set out in her instructions, she had not seen the medical report prepared by the defendant's expert and she in fact did not agree with some of the statements contained within the joint statement. The claim ultimately settled for a significantly lower sum than the value of the claim if she had not changed her opinion.

Mr Jones brought a professional negligence claim against Dr Kaney. She sought to claim that she was immune from suit pursuant to the Court of Appeal decision in Stanton v Callaghan [2000] QB 75 CA (Civ Div). Previous public interest justifications for retaining immunity, such as the necessity to ensure full and frank discussion between experts and the freedom to make concessions without fear of a negligence claim, were dismissed by the Supreme Court.

Taking stock

Experts, insurers and solicitors will need to take stock of the decision and its possible implications. Although the Jones v Kaney case had its roots in a personal injury claim, the implications of the decision apply to experts across all disciplines, albeit that claims can only be brought by the instructing party. A party cannot bring a claim in negligence against an expert witnesses instructed by another party or against an expert appointed by the court.

Experts and insurers will no doubt have concerns that the removal of immunity could open the floodgates to claims against expert witnesses. However, establishing negligence against credible and experienced expert witnesses will not be easy and the analogous removal of advocates' immunity in 2002 did not lead to large numbers of claims being brought.

Nevertheless, some claims will inevitably be brought and it is possible that some lawyers will view experts as easier targets than barristers and will seek to exploit this new area of litigation, particularly in cases where an expert has changed their opinion to the detriment of the instructing party.

Staying protected

There are obvious precautions experts can take to safeguard themselves from future claims. They should ensure that they have clear instructions and full documentation, that they are not bullied by their opponent or their instructing solicitors and that they make informed decisions. Where appropriate they should defer to the court on questions of fact and be prepared to change their minds if necessary. It is acceptable for an expert to change his mind for good reason and to do so is not necessarily negligent.

In theory, experts should have been adopting these practices in any event since immunity from suit should not have influenced their duty to act independently and provide assistance to the court on matters within their expertise. Nevertheless, the threat of claims and the increased insurance premiums they attract could lead to greater professionalism among experts, more reasoned and realistic initial advice and better quality evidence.

Although the decision appears to have retrospective effect, past conduct should be covered by professional indemnity insurance which usually operates on a time claims made basis. Experts will need to review their insurance policies immediately to ensure that they afford sufficient cover for past and future expert work. Likewise, insurers will need to assess the cover offered to professionals who act as expert witnesses and will need to record incoming claims and adapt cover and premiums accordingly.

Beginning of the end?

Some commentators have raised concerns that some professionals may no longer be willing to act as experts in litigation because of the risk that they could be sued. However, giving the leading judgment, Lord Phillips did not consider that the removal of immunity from suit was essential to secure an adequate supply of experts.

The abolition of experts' immunity from suit on top of the abolition of advocates' immunity from suit less than a decade ago has raised fears that the erosion of immunity will continue and extend to other witnesses. Lord Hope, dissenting, stated: 'An incautious removal of the immunity from one class of witness risks destabilising the protection that is given to witnesses generally.'

Lord Phillips took a different view: 'A significant distinction between an expert witness and a witness of fact is that the former will have chosen to provide his services and will voluntarily have undertaken duties to his client for reward under contract whereas the latter will have no such motive for giving evidence.'

He added: 'There is a marked difference between holding the expert witness immune from liability for breach of the duty that he has undertaken to the claimant and granting immunity to a witness of fact from liability against a claim for defamation, or some other tortious claim, where the witness may not have volunteered to give evidence and where he owes no duty to the claimant.'