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The End of Expert Witness Immunity?

5 Apr 11 The Supreme Court has cast doubt on the justification for expert witness immunity and whether its removal would lead to an increase in vexatious litigation. The Court expressed the view that the immunity currently enjoyed by experts should be abolished.

The case concerned a road traffic accident, in which the appellant was knocked down by a car and suffered from post traumatic stress disorder (PTSD), depression, an adjustment disorder and associated illness behaviour which manifested itself in chronic pain syndrome.

A consultant clinical psychologist was retained to act as an expert witness for the appellant. Following a telephone discussion between the experts in the case, the appellant’s expert signed a joint statement prepared by the opposing expert, without making any comment or amendment. She later said that the joint statement did not reflect what she had agreed in the telephone discussion but that she had felt ‘under pressure’ to sign it. Because of the damaging nature of admissions in the joint statement, the claim was settled for a sum that was considerably less than would have been the case if the appellant’s expert had not signed the joint statement in the terms that she did.

The appellant commenced proceedings against the expert. The expert relied upon the principle that an expert witness in civil proceedings is immune from being sued. At first instance the expert was successful and the claim was struck out. The issue came before the Supreme Court as a result of a ‘leap-frog’ certificate enabling the appellant to bypass the Court of Appeal in its appeal against the strike out decision based upon the immunity rule.

In its decision, the Supreme Court reviewed various authorities, and discussed the reasons why expert witnesses enjoy immunity from suit, and whether such immunity could be justified.

The key element which ran throughout all the authorities was the “chilling effect” should experts be left open to suit. The argument was that it would make witnesses reluctant to testify, and if they did testify, it would make them reluctant to do so freely and frankly. The cases emphasised that the object of the immunity was not to protect those whose conduct was open to criticism, but those who would be subject to unjustified and vexatious claims by disgruntled litigants. The justifications for expert witness immunity were identified as being:

To protect witnesses who have given evidence in good faith from being harassed and vexed by unjustified claims;

To encourage honest and well meaning persons to assist justice; in the interest of establishing the truth and to secure that justice may be done;

To secure that the witness will speak freely and fearlessly;

To avoid a multiplicity of actions in which the value or truth of the evidence of a witness would be tried all over again.

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It would not be right to start with a presumption that because the immunity exists it should be maintained unless it is shown to be unjustified. The onus lay fairly and squarely on the respondent to justify the immunity behind which she sought to shelter.

Lord Phillips drew a comparison with the position of barristers. It was always believed that it was necessary that barristers should be immune from suit in order to ensure that they were not inhibited from performing their duty to the court. However, in his Lordship’s experience, removal of their immunity had not resulted in any diminution of the advocate’s readiness to perform that duty. It would be quite wrong to perpetuate the immunity of expert witnesses out of mere conjecture that they would be reluctant to perform their duty to the court if they were not immune from suit for breach of duty.

The judge could appreciate that there might be apprehension amongst experts, but, again, he questioned the extent to which this was realistic to anticipate vexatious litigation. In the present case, on the agreed facts, the expert admitted that she had signed a joint report which had not reflected her views. There was nothing vexatious about the present claim. If a litigant is disaffected because a diligent expert has made concessions that have damaged his case, how is he to get a claim against that expert off the ground? It will not be viable without the support of another expert. The litigant without resources will be unlikely to succeed in persuading lawyers to act on a conditional fee basis. A litigant in person who seeks to bring such a claim without professional support will be unable to plead a coherent case and will be susceptible to a strike out application. For those reasons Lord Phillips doubted whether removal of expert witness immunity would lead to a proliferation of vexatious claims.

Taking the above considerations into account, Lord Phillips considered that the immunity from suit for breach of duty which expert witnesses have enjoyed should be abolished. This did not extend to the absolute privilege that they enjoyed in respect of claims in defamation. The appeal would be allowed.


Jones v Kaney, [2011] UKSC

Also in this weeks' subscription bulletin from Bliss Books:

  • Whether a contract was "in writing" for the purposes of the Construction Act;
  • An adjudicator breached the rules of natural justice by not permitting the parties to comment on findings of fact made using his own knowledge and experience;
  • Whether a party can stay its own litigation to refer the dispute to arbitration;
  • The extent of a defendant's duty to disclose information to an arbitrator.

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