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Archive for April, 2010

Immune from suit?

As the law stands, a witness is generally immune from suit.  However, matters may change.

In Paul Wynne Jones v Sue Kaney [2010] EWHC 61, a consultant, appointed an expert witness, reported the claimant had a post traumatic stress disorder.  Following a meeting with another expert witness, a joint statement was issued damaging to the claimant’s prospects of success.  The claimant issued proceedings against the consultant who pleaded immunity.

The judge, the Honourable Mr Justice Blake, heard submissions to the effect that recent developments in the law eroded the rule of immunity in tort.  First, an expert witness might be vulnerable to an order for costs under the civil proceedings rules; second, professional disciplinary proceedings may infringe the immunity principle and finally, blanket immunity is vulnerable to attack on Human Rights grounds.  He was, however, satisfied that the law, as it presently stands, was binding on him and on the Court of Appeal but “… that there is a substantial likelihood that on re-examination by a superior court, with the power to do so, it will emerge that the public policy justification for the rule cannot support it”.  

In consequence, the judge, whilst striking out the claimant’s claim as he was bound to do, has taken the very unusual step of issuing a certificate to the effect that the appeal should be considered by the Supreme Court.  He commented “It is, of course, entirely a matter for the Supreme Court whether they will grant leave to appeal to entertain this case and the re-consideration of this particular area of law that the application gives rise to.”

It is understood that the Supreme Court is to consider the application for leave in November 2010.  Until then, any person instructed as an expert witness must consider their position but should bear in mind that if they give their opinion “honestly and in good faith” he should not be involved in subsequent proceedings commenced against him.

To hear more, contact Hatherleigh Training.