By a majority of five to two the Supreme Court has removed the immunity of expert witnesses from legal claims.
At the Supreme Court hearing earlier this year, the respondent expert claimed several grounds for not removing immunity including: (i) that it would make experts reluctant to testify and experts apprehensive of giving full and frank evidence; (ii) that diligent experts could be harassed by vexatious claims for breach of duty; and (iii) the risk of a multiplicity of suits.
However, giving the lead judgment this morning, Lord Phillips, president of the Supreme Court, analysed those grounds and concluded that “no justification has been shown for continuing to hold expert witnesses immune from suit in respect of the evidence that they give in court or for the views they express in anticipation of court proceedings.”
The case, which will apply equally to property experts, involved consultant clinical psychologist Sue Kaney, who was instructed by the solicitor for Paul Jones to advise on a psychiatric injury caused by a traffic accident for which Jones was seeking damages.
As a result of a joint statement made by Kaney and the expert for the other party, the matter was allegedly settled for a lower sum than would have been the case had Kaney not signed the statement.
Jones sued Kaney for damages for negligence, but she pleaded witness immunity, pursuant to the Court of Appeal’s decision in
Commenting on the Supreme Court reversal of that decision, Simon Edwards, consultant and head of property management at Davis Brown, said: “Following this removal, those surveyors who do expert witness work will want to be sure that they can handle all of the points of a case put to them in order to avoid a claim for professional negligence at a later date.
“Surveyors acting as expert witnesses may need to consider their professional indemnity cover in order to ensure that they are fully covered in case of a professional negligence claim arising.”
Roger Cohen joint head of real estate disputes at Berwin Leighton Paisner added: “Valuers must take even more care with their ‘day 1’ view. Clients never like surprises. A valuation expert who changes tack mid-case may now be exposed to a claim. This decision puts a greater premium on clarity and caution as to the basis of the expert opinion.”
Jones v Kaney Supreme Court (Lord Phillips, president, Lord Hope, deputy president, Lady Hale, Lord Brown, Lord Collins, Lord Kerr and Lord Dyson) 30 March 2011
Roger Ter Haar QC and Daniel Shapiro (instructed by Hill Dickinson LLP, of Liverpool) appeared for the appellant; Patrick Lawrence QC and Charles Phipps (instructed by Berrymans Lace Mawer LLP, of Manchester) appeared for the respondent.
