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Expert Blog

Expert Witness Immunity and Jones v Kaney (Part 1 of 3)

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After the UK Supreme Court’s decision in Jones v Kaney [2011] 2 AC 398 experts no longer enjoy immunity from being sued. This post will begin a three-part series on this case. This post will summarise the facts and issues of the case, set out the framework of the Court’s reasoning and discuss the first element of its reasoning. The second post will look at the remaining reasons, and the third will assess the likelihood that this doctrine will be extended to Australia.

It is important to note before we proceed that the position in Australia is presently that expert witnesses still enjoy immunity. This has been decided recently in the NSW Court of Appeal[1], a decision which was described in the Supreme Court of NSW as recently as March this year as an ‘uncontroversial position’.[2] Therefore, experts should not worry about the possibility of being sued in Australia.

Facts:

The Claimant’s expert witness gave a report that suggested a claimant suffered PTSD, a conclusion which differed to the Defendant’s expert who claimed that the Claimant was exaggerating his symptoms. The judge at first instance ordered the experts to issue a joint report. The two experts discussed the matter over the phone and the Defendant’s expert subsequently sent a draft joint statement to the Claimant’s expert, who signed it without amending it even though the opinions in it differed radically from her original opinion. After the Claimant’s solicitors investigated it was discovered that:

  1. She had not seen the reports of the opposing expert at the time of the telephone conference;
  2. The Joint Statement, as drafted by the opposing expert, did not reflect what she had agreed in the telephone conversation, but she had felt under some pressure in agreeing it;
  3. Her true view was that the Claimant had been evasive rather than deceptive;
  4. It was her view that the Claimant did suffer PTSD which was now resolved.
  5. She was happy for the Claimant’s then solicitors to amend the joint statement.[3]

The Claimant’s solicitors were unable to convince the trial judge that the expert should no longer act in the matter, and as a result, it was settled for a much smaller sum than if the expert did not sign the joint statement.

The Claimant then brought an action against the expert witness, to which the Defendant sought to strike out the claim in reliance of the expert witness immunity. The matter was then referred to the Supreme Court as the judge at first instance was bound by authority that only the Supreme Court could overturn.

Issues on appeal:

This was summarised concisely by Lord Phillips:

“The narrow issue raised by this appeal is whether the act of preparing a joint witness statement is one in respect of which an expert witness enjoys immunity from suit … [these] submissions have raised the broader issue of whether public policy justifies conferring on an expert witness any immunity from liability in negligence in relation to the performance of his duties in that capacity.”[4]

This immunity was affirmed quite recently by the Court of Appeal in Stanton v Callaghan [1998] QB 75 and dated over 400 years.[5]

Reasoning:

It was held (5:2) that there was no justification for holding witnesses immune for opinions they give in relation to court proceedings.

Lord Phillips, who wrote the leading judgment, identified four potential reasons for the immunity:[6]

  1. To avoid experts being reluctant to testify
  2. To allow experts to give full and frank evidence to the court
  3. To protect witnesses from being harassed by vexatious litigation.
  4. To avoid the original trial needing to be re-litigated.

Lord Phillips was clear in stating that the onus ‘lies fairly and squarely on the defendant to justify the immunity behind which she seeks to shelter.’[7] He adopted the approach of the House of Lords with respect of immunity of suit with respect of advocates. That is, ‘whether the abolition of the rule would probably be attended by such disadvantage to the public interest as to make its retention clearly justifiable.’[8]

Importantly, the Court engaged in a contemporary analysis because the use of witnesses has clearly evolved from a time when ‘it was not customary for experts to offer their services under contract for reward.’[9]

Reluctance to testify:

Essentially the Lords dispensed with this quickly by stating that there was no proof that this would have the asserted ‘chilling effect’ on the supply of witnesses.[10]

Importantly, the Lords compared expert witnesses to other professionsNo doubt, there are many professional services offered in spite of the possibility of being sued. Reference in this case was made to obstetricians and also barristers given that their immunity was previously stripped in the UK. At any rate, any ‘conscientious experts’[11] that are screened and experienced – such as those listed here – would surely not be dissuaded from giving evidence for fear of being sued.  Interestingly, the Defendant raised a survey of 106 experts that were asked whether they would continue to act if the immunity was substantially reduced. Fourteen said they would not. Lord Phillips said that this does not establish that there wouldn’t be an adequate supply of witnesses.[12]

This series will continue with part two analysing the other three purported reasons for the immunity.

This article was prepared in conjunction with Truman Biro.


[1] Commonwealth of Australia v Griffiths (2007) 70 NSWLR 268. 

[2] DC v New South Wales (No 4) [2013] NSWSC 207 (18 March 2013) [24].

[3] Jones v Kaney [2010] EWHC (QB), [4]. (This was the decision prior to reaching the Supreme Court)

[4] Jones v Kaney [2011] 2 AC 398, 406 (Lord Phillips).

[5] Jones v Kaney [2011] 2 AC 398, 407 (Lord Phillips) citing Cutler v Dixon (1585) 4 Co Rep 14b.

[6] Jones v Kaney [2011] 2 AC 398, 419-22 (Lord Phillips).

[7] Jones v Kaney [2011] 2 AC 398, 419 (Lord Phillips).

[8] Jones v Kaney [2011] 2 AC 398, 419 (Lord Phillips) quoting Rondel v Worsley [1969] 1 AC 191, 228.

[9] Jones v Kaney [2011] 2 AC 398, 427 (Lord Kerr).

[10] Jones v Kaney [2011] 2 AC 398, 429 (Lord Kerr).

[11] Jones v Kaney [2011] 2 AC 398, 427 (Lord Collins).

[12] Jones v Kaney [2011] 2 AC 398, 420 (Lord Phillips).