Jones v Kaney UKSC 13 is a 2011 decision of the Supreme Court of the United Kingdom on whether expert witnesses retained by a party in litigation can be sued for professional negligence in England and Wales, or whether they have the benefit of immunity from suit. The case involved a psychologist (Kaney) instructed as an expert witness in a personal injury claim, who was said to have negligently signed a statement of matters agreed with the expert instructed by the opposing side, in which she made a number of concessions that weakened the claim considerably. As a result, according to the injured claimant (Jones), he had to settle the claim for much less than he would have obtained had his expert not been careless. To succeed in the claim, he had to overturn an earlier Court of Appeal decision that had decided that preparation of a joint statement with the other side's expert was covered by immunity from suit. Kaney therefore succeeded in getting the claim struck out before trial on an application heard by Mr Justice Blake in the High Court of Justice. The judge issued a certificate allowing the claimant to "leapfrog" the Court of Appeal and go straight to the Supreme Court to appeal against his decision.
The Supreme Court, by a majority of five to two, decided that expert witnesses were not immune in the law of England and Wales from claims in tort or contract for matters connected with their participation in legal proceedings. This reversed a line of authority dating back 400 years. The case considered the narrow issue, namely whether preparation of a joint statement by experts was immune from suit, and the wider public policy issue of whether litigants should be able to sue experts that they had instructed for breach of duty. There was discussion about whether removing the immunity would have a "chilling effect" on the willingness of experts to participate in court proceedings, although judges on both sides of the decision agreed that there was no empirical evidence on the point. Lord Phillips, a member of the majority, compared the situation of expert witnesses with that of advocates, on the basis that both owed duties to clients and to the court. Advocates' immunity from claims in negligence had been removed in 2001 in Hall v Simons. The change, he said, had not led to an increase in vexatious claims or a reduction in the performance of duties owed by advocates to the court. Lord Hope, in the minority, said that experts and advocates had different functions and so disagreed with the comparison. He also pointed out that English law would now be different from Scots law on this issue.
The judgment has been called a "landmark ruling" by the Law Society Gazette, with lawyers saying that the decision was expected but long overdue. One barrister, Clare Montgomery QC, looked at the implications for other participants in the legal process, commenting that the "process of whittling away the scope of the immunity" that they have "appears to be far from over". Other commentators were concerned that the decision would lead to reduction in the number of expert witnesses prepared to become involved with some particularly sensitive areas, such as child abuse cases. Lady Hale, the other dissenting judge, said that changing the law in this way was "irresponsible" and said that the position should instead be considered by the Law Commission and Parliament.
Background In 2001, the claimant (Paul Jones) was involved in a road traffic accident and later brought a claim for damages for physical and psychiatric injury. His solicitors instructed the defendant, Dr Sue Kaney (a consultant clinical psychologist), in 2003 to advise and report on the claim. She expressed her initial view was that he was suffering from post traumatic stress disorder (PTSD). However, the view taken by the psychiatrist instructed by the insurers defending the claim was that Jones was exaggerating the effects of his physical injuries, either consciously or unconsciously. The two experts held a discussion in November 2005 to see what if any agreement they could reach. The joint statement signed by both experts after the discussion showed that Kaney had conceded ground on a number of issues, weakening the claim considerably. She agreed that the claimant's psychological reaction was only an adjustment reaction, not PTSD, and she further stated that Jones had been "very deceptive and deceitful in his reporting", suggesting that he might be consciously giving incorrect information to the experts.High Court decision, paras. 1–3.
Jones's solicitors asked why she had changed her views so completely. According to the allegations made in the subsequent claim for damages against her, she had felt under pressure to agree the wording of the document although it did not represent what she had agreed during the discussion and did not represent her true view, which was that Jones had had PTSD and had only been evasive not deceptive. The personal injury claim was subsequently settled without a trial.High Court decision, paras. 4–5.
In 2009, Jones brought a claim for damages for professional negligence against Kaney, on the basis that the personal injury claim had had to be settled for considerably less than would have been the case had Kaney not signed a document that apparently did not reflect her views.High Court decision, paras. 5–6. Kaney applied to strike out the claim before filing a defence, on the basis that the claim could not possibly succeed given the binding authority of the Court of Appeal decision of Stanton v Callaghan in 1998 that expert witnesses could not be sued for negligence when preparing a joint statement with the opposing side's expert witness.High Court decision, paras. 1–3; Lord Phillips, para. 1.
The application succeeded before Mr Justice Blake, sitting in the High Court. He granted a certificate under section 12 of the Administration of Justice Act 1969, allowing the claimant to "leapfrog" the Court of Appeal and proceed directly to the Supreme Court, who (unlike the Court of Appeal) would have power to overrule the decision in Stanton if it was wrong.High Court decision, paras. 42–47. He took the view that there was a "substantial likelihood" that Stanton would be overturned by the Supreme Court, on the basis that "a policy of blanket immunity for all witnesses, indiscriminately protecting witnesses as to fact and witnesses on the opposing side from expert witnesses retained by a party to advise them before and during the proceedings as to a pertinent issue in those proceedings, may well prove to be too broad to be sustainable and therefore disproportionate."High Court decision, para. 38.
Judgment The appeal was heard by seven of the Justices of the Supreme Court: Lord Phillips, the President of the Court; Lord Hope, the Deputy President; Lady Hale; Lord Brown; Lord Collins; Lord Kerr; and Lord Dyson. The decision to allow Jones's appeal against the strike-out order was reached by a majority of five to two, with Lord Hope and Lady Hale dissenting. The Supreme Court normally sits with a panel of five Justices, but may sit with more when the case is of "great public importance".
Majority views Lord Phillips said that the appeal raised the "narrow issue" of whether "the act of preparing a joint witness statement is one in respect of which an expert witness enjoys immunity from suit", and 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."Lord Phillips, para. 2. He said that it was surprising that the immunity had simply been accepted in the past and never challenged. He noted that the immunity dated back to Cutler v Dixon in 1585, over 400 years ago, before English tort law developed the modern law of negligence.Lord Phillips, para. 11. It was originally a complete protection for witnesses against claims for defamation, before developing to cover protection from other tort claims.Lord Phillips, para. 12. He noted that it was difficult to draw the line at present between expert assistance that was immune from claim and that which was not: it might be that the earlier advice was negligent, not the evidence given in court resiling from that earlier advice, even if it was the later developments about which the client complained.Lord Phillips, paras. 42–43.
He said that there were three justifications for the immunity given in the caselaw and in argument. Firstly, there was the "chilling effect" of such claims, making witnesses reluctant to give frank evidence or to provide expert evidence at all; secondly, the risk that an expert witness would be reluctant to comply with his paramount duty to the court if to do so involved giving evidence contrary to his client's interest with a risk of being sued for doing so.Lord Phillips, paras. 15, 39–40. Thirdly, it was "undesirable" that a court hearing a claim for negligence against an expert witness should have to decide whether the court that decided the claim in which the expert gave evidence reached the correct decision. This argument was not at the forefront of the defendant's arguments, but was one that Lord Phillips said should not be wholly discounted.Lord Phillips, paras. 39, 41. He noted that a claim based on an alleged wrongful conviction as the result of an expert's negligence would be struck out as an abuse of process unless the conviction had been overturned, under the rule in Hunter v Chief Constable of the West Midlands Police.Lord Philips, para. 60
Lord Phillips noted that expert witnesses (unlike witnesses giving evidence of facts) had volunteered to give evidence and were doing so for payment.Lord Phillips, para. 18. He saw "no justification" for the assumption that experts would be discouraged from providing their services if they could be sued.Lord Phillips, para. 52. As for the effect on an expert's willingness to give frank evidence, there was no empirical evidence either way, he said. However, a witness of integrity would concede a change of view where necessary to do so and ought not to be concerned about being sued.Lord Phillips, para. 56.
He noted that Lord Hoffmann in Hall v Simons (2001) had said that a witness owed no duty of care in respect of his evidence, only a duty to tell the truth, but he considered that to be incorrect, since it failed to distinguish between witnesses of fact and experts.Lord Phillips, para. 46. The expert would have a contract with the client in which he agreed to perform the duties that he owed to the court, and so there was no conflict between the two duties.Lord Phillips, para. 49. In this respect, expert witnesses were more like advocates, who owed duties to client and court, than to witnesses of fact.Lord Phillips, para. 50. He noted that barristers had long been immune from negligence claims until the decision of the House of Lords in Hall v Simons.Lord Phillips, para. 34. Removing their immunity, he said, had not led to any diminution in advocates performing their duty to the court, and it would be "mere conjecture" to assume that this would be any different for expert witnesses.Lord Phillips, para. 57. Neither had vexatious claims been a problem for barristers – in any event, the present case was not vexatious and there were other hurdles, both procedural and financial, in the way of an unsuccessful litigant making unmeritorious claims against an expert.Lord Phillips, paras. 58–59. As there was no justification for continuing to hold that expert witnesses were "immune from suit in relation to the evidence they give in court or for the views they express in anticipation of court proceedings", he concluded that the immunity for claims for breach of duty (but not defamation) should be abolished.Lord Phillips, paras. 61–62.