No get-out for experts

Immunity from negligence actions for expert witnesses has been effectively abolished by the Supreme Court.

In Jones v Kaney [2011] UKSC 13, [2011] All ER (D) 346 (Mar), the court held by a 5-2 majority that experts’ immunity should be abolished in relation to evidence given in court and to views expressed in anticipation of court proceedings, overturning the Court of Appeal’s ruling in Stanton v Callaghan [1998] 4 All ER 961, [1999] 2 WLR 745.

The case involved a damages claim for alleged post-traumatic stress disorder following a car accident in 2001. Dr Kaney, a clinical psychologist, supported Jones’s allegations but later signed a statement to the effect that Jones had been “deceptive and deceitful” in reporting his injuries.

Jones launched professional negligence proceedings but Dr Kaney pleaded immunity from suit and applied to have the claim struck out.

Professor Penny Cooper, governor of the Expert Witness Institute, says: “There is a real risk that experts will be ‘deterred from coming forward to give evidence’ because of ‘the risk of being harassed afterwards by actions in which allegations are made against them in an attempt to make them liable in damages’ to use the words of Lord Hope who gave a dissenting judgment.

“The impact in the family courts will be particularly bad. Experts are already in short supply, many of them having been put off by what happened to Professor Sir Roy Meadow.”

Solicitors said experts will now need to review their indemnity insurance
policies.

Ian McConkey, professional risk partner at Beachcroft, said: “Insurers should consider the content of their policy cover for expert witnesses and the terms which might apply in light of the judgment. Experts will need to ensure their indemnity cover fits the work they undertake.

“Insurers and experts alike, however, may take comfort that the abolition of advocates’ immunity 10 years ago has not led to a major rush of civil claims and it is far from clear that the situation will be greatly different with experts.”

Mark Solon, managing director of legal training consultancy, Bond Solon, said: “This judgment marks the end of the amateur expert. Only wimps will withdraw, as professionals in all fields have always been open to be sued. Experts must now consider indemnity insurance” (see this issue pp 488-489).