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Focus: UK Supreme Court abolishes expert immunity

5 April 2011

In brief: A landmark decision recently handed down by the UK Supreme Court has found that there was no justification to continue to give expert witnesses immunity from being sued for negligence in relation to the evidence they give in court or the views that they express in anticipation of court proceedings. The court did not accept that potential liability would result in reluctance on the part of experts to accept instructions, nor would it prevent them from exercising their overriding duty to the court and acting with diligence and integrity. Partner Michael Quinlan (view CV) and Senior Associate Joanne Howie* report.

How does it affect you?

  • While expert witnesses providing services in Australia still enjoy immunity, it remains to be seen whether Australian courts will follow the UK position by abolishing immunity for expert witnesses in the future if this immunity is challenged.
  • Expert witnesses, both in Australia and the UK, should ensure that they are properly protected from potential liability by including appropriate clauses in their contractual retainers and ensuring that adequate professional indemnity insurance arrangements are in place. Experts should also be aware of the potential risks of pitching their initial views on the merits of their client's case too high or inflexibly in case these views need to be amended at a later stage.
  • In practice, successfully proving an expert's negligence is likely to be difficult. The expert's overriding duty is to the court, and just because an expert witness has formed a view that is unhelpful to his client's case does not mean that the expert has been negligent or that they will be found liable.
  • It remains to be seen whether or not the UK Supreme Court is correct in its view that abolishing immunity for expert witnesses will not result in fewer experts being willing to provide their services.
  • Professional indemnity insurers, especially in the UK, will no doubt be considering whether to increase insurance premiums for experts in light of this decision.

Background

The origins of this case (Jones v Kaney [2011] UKSC 13) can be traced back to a road traffic accident in 2001 involving the appellant, Mr Jones. Mrs Kaney, a consultant clinical psychologist, was instructed to act as an expert in a personal injury claim commenced by the appellant. She initially found that the appellant was suffering from post-traumatic stress disorder, but later signed a joint statement which was prepared by the defendant's expert and which did not express her views. The report was damaging to the appellant's claim, and, as a result, the litigation was settled for significantly less than would otherwise have been the case.

A negligence claim was brought by the appellant against Mrs Kaney, but was struck out by Justice Blake in January 2010 on the ground of expert witness immunity. He certified, however, that the case involved a point of law of general public importance and granted a 'leapfrog certificate' under section 12 of the Administration of Justice Act 1969 (UK) to allow any appeal to proceed directly to the Supreme Court. The appeal was heard by the Supreme Court in January 2011.

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The decision of the Supreme Court

The court held, by a majority of five to two, that the immunity from suit for breach of duty (whether in contract or in negligence) that expert witnesses have enjoyed in relation to their participation in legal proceedings should be abolished. This decision does not affect the continuation of absolute privilege for all witnesses from claims in defamation.

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The reasons for the decision

The immunity of expert witnesses in the UK had a long history dating back more than 400 years. It was justified on public policy grounds, namely that the expert's duty to the court must override the fear of suit arising out of a departure from a previously held position. In deciding whether the immunity should be maintained, the majority of the court agreed that the appropriate starting point was that the existence of any immunity had to be clearly justified. The court therefore examined whether the abolition of the rule would result in such disadvantage to the public interest as to make its retention clearly justifiable.

The majority considered a number of arguments for upholding the immunity, including whether it was necessary in order to encourage honest and well-meaning persons to assist justice, to secure that witnesses will speak freely and fearlessly, and to avoid a multiplicity of actions in which the value or truth of the evidence of a witness could be tried all over again. The Supreme Court dismissed all of these arguments.

First, and perhaps most significantly, the court did not agree that abolishing the immunity would have a 'chilling effect' on the supply of expert witnesses. The court reasoned that other professionals who owe a duty of care (eg solicitors) are at risk of being sued, but continue to provide their services. The risk of being sued in relation to providing forensic evidence should not constitute a greater disincentive to the provision of such services than does the risk of being sued in relation to any other form of professional service.

Second, the court found that immunity was not necessary to ensure that expert witnesses give full and frank evidence to the court. A witness has a duty to the court to express his views, even if they are contrary to his client's interests, and to frankly concede if he changes his opinion in the course of proceedings.

Finally, the majority view was that the removal of expert immunity was unlikely to lead to a proliferation of vexatious claims. It is far less easy, they said, for a lay litigant to mount a credible case that his expert witness has been negligent than it would be to allege that a witness of fact was guilty of making defamatory statements.

Lord Hope and Lady Hale dissented. The existing rule, in their opinion, reflected a clear policy choice intended to protect and maintain the integrity of judicial evidence gathering processes. Both thought that this was a question best left to consideration by the Law Commission and reform, if appropriate, by Parliament rather than by the Supreme Court.

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No immunity for UK advocates

In reaching their decision, the court was influenced by the fact that UK advocates no longer enjoy immunity from suit. This immunity, which afforded protection to UK barristers from a claim by their own client for failure to exercise reasonable skill and care in the conduct of litigation on behalf of the client, was abolished in 2002.1 The court was of the view that the removal of a barrister's immunity has not resulted in any diminution of the advocate's readiness to perform their duty to the court. Nor has it resulted in a flood of vexatious claims against barristers from disappointed litigants.

The majority concluded that an expert witness has far more in common with the advocate than he does with the witness of fact. An expert witness and an advocate both undertake a duty to provide services to the client, and those services include a paramount duty to the court and the public, which may require the advocate or the witness to act in a way that does not advance the client's case.

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The Australian position

The immunity of expert witnesses has been re-affirmed in Australia in recent years in Sovereign Motor Inns Pty Ltd v Howarth Asia Pacific Pty Ltd2; James v Medical Board of South Australia3 and Commonwealth v Griffiths4.

It will be therefore interesting to see whether this decision will impact on the immunity of expert witnesses in Australia should a disgruntled litigant seek to sue its expert in Australia in the future. One significant difference is that, unlike the UK position, barristers practising in Australia continue to be protected from immunity from suit in relation to their conduct of court proceedings. It is perhaps unlikely that expert immunity will be stripped away while barristers continue to be protected. However, if this position is challenged by a litigant, the courts are likely to take note of, and may be influenced by, this change in approach by the UK courts.

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Comment

Some see this as a healthy development in the expert's ultimate task of assisting the court to a fair outcome of the dispute and helping the parties to a reasonable pre-trial settlement. If an expert negligently causes his client loss by adopting or adhering to a view outside the permissible range of reasonable expert opinions, the wronged client will enjoy, rather than have denied to him by rule of law, his proper remedy.

The majority of the Supreme Court stressed that proving an expert's negligence will not be an easy process, and Lord Brown noted that successful claims against experts will be 'highly exceptional' and urged the courts 'to be alert to protect expert witnesses against specious claims by disappointed litigants'.

It remains to be seen whether or not this decision will have a 'chilling' effect on the willingness of experts to provide their services. What is clear, however, is that expert witnesses (both in the UK and Australia) should ensure that they are protected from potential liability by adequate insurance arrangements and appropriate contractual provisions in their retainers.

* Admitted in England and Wales only.

Footnotes
  1. Arthur JS Hall & Co v Simons [2002] 1 AC 615. But note that the High Court of Australia re-affirmed advocates immunity remains the law in Australia in 2005: D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12.
  2. [2003] NSWSC 1120.
  3. (2006) 95 SASR 445 (South Australia).
  4. (2007) 245 ALR 172.

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