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Archive for April, 2011

Expert witness immunity not justified

One year ago we referred to the case of Jones v Kaney.  A medical consultant appointed by the claimant in a personal injury case faced her client’s negligence proceedings.  She pleaded immunity of suit.  The judge felt constrained by existing case law and agreed with the expert.  He thought the Court of Appeal would be similarly bound and in consequence took the unusual step of certifying that the matter should go straight to the Supreme Court.

No less than seven Supreme Court judges heard the case in January 2011 although their judgements were not given until 30 March 2011.  By a majority of 5:2, the Court abolished the immunity from suit for breach of duty in contract and in negligence that expert witnesses previously enjoyed when participating in legal proceedings.  In so doing, the Court followed the House of Lords in abolishing a barrister’s immunity from liability in negligence, there being no contractual relationship between a barrister and the lay client, in Hall v Simons [2001] 1 AC 615.

In giving his lead judgement, Lord Phillips identified various justifications advanced for the immunity - a reluctance to testify, a necessity to ensure expert witnesses give full and frank evidence to a court, harassment by vexatious claims for breach of duty and finally, the risk of a multiplicity of suits.  In each case, Lord Phillips concluded that expert witness immunity from suit could not be justified.

We await the outcome of this decision.  Insurance premiums and no doubt fees will increase.  Lord Phillips appreciated the apprehension that expert witnesses may now be subject to vexatious claims but questioned the extent to which this apprehension is realistic.  However, in giving her dissenting judgement, Lady Hale thought the effect on disappointed litigants a major concern.

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