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The abolition of expert immunity in civil proceedings

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On 30 March 2011 the Supreme Court handed down a landmark judgment in the case of Jones v Kaney [2011 UKSC 13] abolishing the immunity from being sued for breach of duty (whether in contract or in negligence) that expert witnesses have previously enjoyed in relation to their participation in civil legal proceedings. It is an important decision for experts and those instructing them.

The Facts

The Claimant, Mr Jones was hit by a car in March 2001 and suffered physical and psychiatric consequences.  In his claim for personal injury, his solicitors instructed Dr Kaney, a consultant clinician psychologist, to prepare a report on his psychiatric injuries for the purposes of the litigation.  She reported that Mr Jones was suffering from Post Traumatic Stress Disorder (PTSD).  Proceedings were issued and liability was admitted and so the only issue in dispute was the amount of damages.  As is usual, the Court ordered that Dr Kaney and the Defendant’s expert hold discussions and prepare a joint statement to assist the Court at the trial.  Mr Jones alleges that Dr Kaney carried out this task negligently because she signed a joint statement which wrongly recorded that she agreed that Mr Jones had not suffered PTSD and she had found Mr Jones to be deceitful in his reporting.  Mr Jones said this was so damaging to his claim for damages that he felt obliged to settle it for a significantly lower sum than he might otherwise had been able to achieve. 

The High Court’s Decision

The High Court struck out the proceedings for negligence against Dr Kaney on the basis that according to previous legal authority, they were doomed to failure as she enjoyed immunity from being sued in relation to her participation in civil legal proceedings. The Supreme Court was asked by Mr Jones to reverse the High Court’s decision. For the purpose of this application on the immunity question, the facts as alleged by Mr Jones were assumed to be true.  The question of whether or not Mrs Kaney has a good defence on the merits remains to be resolved by a different Court later.

The Decision

On a 5 to 2 majority the Supreme Court abolished the expert immunity which previously existed.  The Court said that the logic behind the immunity had been as a matter of public policy to facilitate full and frank discussion between experts before trial so that each should be free to make proper concessions without any fear from departure from advice previously given to the party who the expert represented.  The removal of immunity might have a chilling effect on the expert which would or might prevent him from expressing his truly whole beliefs. However, at the end of each of every expert’s report the expert has to state that he understands and has complied with his duty to the Court.  The expert agrees with his client that he will perform the duties that he owes to the Court.  Therefore, there is no conflict between the duty of the expert to his client and the duty that he owes to the Court.  Immunity was a disproportionate protection for an expert. 

The Litigant’s Perspective

The abolition of expert immunity is a welcome updating of the law.  As the Supreme Court identified, an expert’s initial advice is likely to be for the benefit of his client alone.  The client relies on the expert in making important decisions about whether or not to pursue a claim and on what terms to settle it. An expert who negligently prepares for a joint conference, fails carefully to scrutinise the proposed joint statement before signing it, or is persuaded to record entirely unfounded imputations against his instructing party based on a failure to remember or record his instruction can cause great damage to the party who has instructed him.  Once the damage is done in a careless concession in a joint report, it cannot be undone. There is insufficient reason for immunity and it can lead to injustice. The Court has said it will discourage claims by disappointed litigants.  The Judgment is not a threat to conscientious and competent experts. The most likely consequence “will be a sharpened awareness among experts of the risks of pitching their initial views of the merits of their client’s case too high or too inflexibly lest these views come to expose and embarrass then later [which is]….a healthy development”.

Lessons for Experts

  1. Experts should consider the information carefully and objectively when giving their initial opinion.  They should leave questions of fact to the Court and give alternative views based on the alternative decisions which the Court may give on the facts (if appropriate).
  2. Before joint discussions the expert should make sure that he is fully prepared by reading the reports and relevant background information.  If there is a real chance that the expert may be persuaded to change his mind, he should speak to his instructing solicitor in good time so that any arguments or points that the expert may have overlooked can be discussed. 
  3. Expert discussions should not be held in a rush or when the expert may be tired and make mistakes.  An expert should feel at liberty to postpone discussions if this is happening.
  4. If an expert is genuinely persuaded on a point and agrees with his opponent, he must say so and record accurately his revised opinion.  It is perfectly acceptable for an expert to change his mind for good reason and that is not negligence.  One of the purposes of joint experts discussions is precisely to narrow the issues. 
  5. Experts should decide in advance who will make the note of the joint discussions.  The expert who is not making those notes should keep his own notes to refer to later.  The expert should not sign up to the record of the joint discussion unless he is satisfied that it is accurate and reflects his truly held views.
  6. If the expert thinks of any additional points after a joint discussion which should have been mentioned and which it is appropriate to discuss further, he should have that further discussion or ensure that the point is included retrospectively in the joint statement.  It is important that the joint statement reflects the expert’s view as it will be expressed to the Court at trial. 
  7. Experts should have appropriate insurance.

If you have any questions about instructing experts or expert immunity please do not hesitate to contact John Mackle who is a senior associate in the commercial dispute resolution department on 0113 336 3336 or at john.mackle@clarionsolicitors.com.

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