In England & Wales, expert witnesses no longer enjoy
immunity from prosecution. Only time will tell what the effects of
this judgement will be.
The case
Jones v Kaney [2011] UKSC 13
The issue
Should expert witnesses be immune from prosecution? A recent
Supreme Court judgement has removed that immunity (in England &
Wales), but this is unlikely to be the end of the matter.
The facts
This important decision of the Supreme Court began with a road
traffic accident in Liverpool on 14 March 2001. Mr Jones had raised
a personal injury action against the other driver (the defendant in
that case). As a part of that action, Mr Jones's solicitors
instructed a consultant clinical psychologist, Dr Kaney, who
carried out two examinations and prepared two reports. Both of
these reached broadly the same conclusion. The expert instructed by
the defendant driver disagreed. Following an order by the district
judge, the experts conducted a telephone conversation; thereafter
the defendant's expert prepared a joint statement which was signed
by Dr Kaney without amendment or comment. The joint statement
significantly undermined the appellant's claim. When challenged, Dr
Kaney advised that she had not read the opposing expert's report
prior to the telephone conversation, that the joint statement did
not reflect the content of the conversation, and that she was
content for the statement to be changed. The appellant sought
permission to change expert but permission was refused. The
personal injury action was settled without trial. The appellant
brought a claim in negligence against Dr Kaney, claiming that the
settlement achieved was far below the true value of the claim. Dr
Kaney applied to strike out the claim on the basis that she enjoyed
immunity in terms of Stanton v Callaghan 1998 QB 75. In the High
Court, Mr Justice Blake granted the application, considering
himself bound by Stanton. However, he granted the appellant a
certificate to appeal directly to the Supreme Court.
The decision
In the Supreme Court the case was heard by a bench of seven
judges: Lord Phillips, President, Lord Hope, Deputy President, Lady
Hale, Lord Brown, Lord Collins, Lord Kerr and Lord Dyson. By a
majority of five to two, the Court held that the immunity granted
to expert witnesses should be abolished. Lord Hope and Lady Hale
dissented. Lord Phillips carried out a detailed analysis of the
immunity, considering its history and justification and compared
the position of experts with that of barristers, from whom the
immunity was removed by Hall v Simmons in 2001. His consideration
of the authorities led him to conclude that there were three main
justifications for the immunity: the chilling effect of potential
liability when the witness was giving evidence; the reluctance of
experts to give evidence where there was a risk of being sued; and
the risk that the court would be required to consider the same
facts on multiple occasions. On balance, Lord Phillips did not
believe that the justifications were sufficient to maintain the
immunity. Lords Brown, Collins, Kerr and Dyson delivered decisions
which expressed broadly the same sentiment. Lord Hope and Lady Hale
expressed the view that removal of the immunity created an
uncertain state of affairs which would potentially undermine
witness immunity in general. They also commented that there was
insufficient evidence to discern the effect of immunity on expert
witnesses. Their view was that, in light of such uncertainty, the
wisest course was to leave things as they were.
Kate Donnachie
This decision has been described variously as a landmark
ruling, an historic decision and as potentially professionalising
the expert witness industry. There is no doubt that the decision is
significant, not least for overturning more than 400 years of
authority. However, the majority of the Supreme Court held that
removing the immunity should have no real effect on the conduct of
proceedings. In reaching that view they relied upon the experience
of barristers and the presence of professional sanctions on experts
giving evidence. It is also important to bear in mind that the
decision does not change the law in Scotland, where expert
witnesses will retain immunity. Amongst the legal profession there
is concern that the decision will make it more difficult to engage
witnesses for Child Protection proceedings and other sensitive
areas. There are also those who believe that the decision
represents the beginning of a complete erosion of witness immunity.
All these concerns were specifically considered and rejected by the
majority of the Supreme Court, and only time will tell whether they
are indeed well founded. The decision may also prompt legislative
attention. Both Lord Hope and Lady Hale expressed the view that the
matter was one more properly dealt with by legislation, and
recommended that the question be considered by Parliament and the
Law Commission. Lord Hope also specifically recommended that the
matter be considered by the Scottish Law Commission. Accordingly,
this decision may not be the last we hear on the subject of expert
immunity, North or South of the border.