Expert Witness Immunity and Jones v Kaney (Part 2 of 3)

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This post continues the three-part series on the UK Supreme Court’s decision Jones v Kaney [2011] 2 AC 398 which held that experts no longer enjoy immunity from being sued. This post will continue from the first by looking at the remaining reasons in the judgment. The third and final post will look at the likelihood of this doctrine extending to Australia.

As stated in the last article, there are four reasons in favour of the immunity,[1] which an expert witness bears the onus to establish in order to justify the immunity.

  1. To avoid experts being reluctant to testify
  2. To allow experts to give full and frank evidence to the court
  3. To protect witnesses from being harassed by vexatious litigation.
  4. To avoid the original trial needing to be re-litigated.

This article will deal with reasons two to four.

Full and frank evidence:

All experts should be aware of the codes of conduct, which is essentially common in each of the various courts and tribunals which stipulate that experts owe an overriding duty to the Court, not to a party and that expert is not advocates for a party.[2] Lord Phillips stated that a ‘witness of integrity’ would inform the Court if their view changed from their initial thoughts.[3] However, he appreciated that experts may be reluctant to inform the Court as they might not want to admit that they were initially wrong, or perhaps too loyal to the client and his team, or even to admit any weaknesses in the client’s case.[4] However, he stated that fear of being sued would not be a reason for the reluctance to change their view because the expert would be aware of their overriding duty to the court and that they would be able to assert that their change of view was because they were performing this duty.[5] This is most important because it indicates that except in truly exceptional cases, it would be difficult to establish an expert’s negligence. This was acknowledged by Lord Dyson who stated that ‘[n]egligence is not easy to prove against an expert witness, especially in relation to what he or she says in the heat of battle in court.’[6] Further, Lord Brown stated that these cases are ‘likely to be highly exceptional.’[7]

Interestingly, Lord Collins looked at the situation in the United States. In the US the use of experts as ‘hired guns’ has proliferated and there is an acknowledgement that experts are clearly biased. Lord Collins looked at the effect that this has had on US jurisprudence, given that different jurisdictions have reached different outcomes as to the existence of an immunity.[8] This is hardly an issue in Australia, especially with services such as ExpertsDirect which thoroughly interviews and screens experts to ensure their integrity.

Vexatious litigation:

This is somewhat linked to the last. Merely respecting their duty to the court would not result in a case of negligence against an expert. It would take an exceptional case, such as one where a witness signs a joint statement when you don’t actually agree to – which violates both the witness’s duty to the court and their client or whatever compulsion they feel toward their client. These claims are anything but vexatious. It is more remarkable that whilst the immunity stands the plaintiff has no remedy against such an expert.

Re-litigation to the original trial:

Again, this is unlikely to occur unless there is a proper claim against the expert – in which cases the justice system would hopefully aid the claimant in seeking re-litigation. Lord Phillips noted that there is a greater risk of this occurring in criminal cases.

Moving forward in the UK

All of the Law Lords acknowledged that experts have professional indemnity insurance available to them. The consequence of this decision may or may not raise premiums by a noticeable amount. Nevertheless, this decision reinforces the fact that expert witnesses are being considered professionals by the courts, and by abstraction, the wider community. It is paramount that experts remain up-to-date with the standards expected of them in both a professional capacity and also their capacity as an aid to the courts’ truth-seeking function.

Only time will tell whether the Supreme Court is correct in dismissing the four assertions made on behalf of the allegedly negligent expert in the case. However, it seems very likely that as they suspect, business will continue as usual for the vast majority of expert witnesses – just like it has for barristers in the UK once their immunity was abolished.

This post concludes the reasoning of the case, however, this series will continue with part three which will assess the likelihood of this decision eventually being made in Australia.

This article was prepared in conjunction with Truman Biro.

[1] Jones v Kaney [2011] 2 AC 398, 419-22 (Lord Phillips).

[2] Peter Garling, ‘Expert Witness Immunity: Continuing Relevance’ (Speech delivered at the Medico-Legal Society of New South Wales), 14 March 2012. See, eg, Uniform Civil Procedure Rules 2005 (NSW) Sch 7 para 2.

[3] Jones v Kaney [2011] 2 AC 398, 420 (Lord Brown).

[4] Jones v Kaney [2011] 2 AC 398, 421 (Lord Brown).

[5] Jones v Kaney [2011] 2 AC 398, 421 (Lord Brown).

[6] Jones v Kaney [2011] 2 AC 398, 434 (Lord Dyson).

[7] Jones v Kaney [2011] 2 AC 398, 423 (Lord Collins).

[8] Jones v Kaney [2011] 2 AC 398, 425 (Lord Collins).

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