For those of us who take appointments as expert witnesses, one of the few certainties is that we are immune from suit for opinions given in evidence. Well that certainty may now be about to disappear.
The case of Paul Wynne Jones -v- Sue Kaney [2010] EWHC 61 (QB), concerned expert evidence in a personal injury case. Mr Jones was in a road accident and instructed Ms Kaney to prepare a medical report. She signed a joint statement prepared by the other side’s expert, but subsequently said the joint statement did not reflect what had been agreed in a telephone discussion between the experts. The joint statement included the comment that Mr Jones did not have a psychiatric disorder, the impact of which reduced Mr Jones’ claim and the settlement he achieved. Mr Jones alleged that Ms Kaney’s expert evidence was negligent. Ms Kaney argued that, as an expert, she enjoyed immunity from suit.
Whilst the High Court decision was in favour of Ms Kaney, the judge felt there may be a public policy argument to remove immunity in respect of expert evidence, and it is widely anticipated that the Supreme Court will grant permission for an appeal on this point directly to it, leapfrogging the Court of Appeal.
Whilst this case concerns the evidence of a clinical psychologist, the ramifications of any appeal will ripple across the whole of the expert witness community, including those of us who act as expert accountants and business valuers.
Some may decry the potential removal of this immunity on the grounds it may make experts reluctant to take on work. Others may argue that experts can already have their work referred to their disciplinary bodies for examination, face adverse costs orders following Phillips & Others -v- Symes & Others [2004] EWHC 1887 (Ch), or have their reputations damaged by adverse comments in a judgment. The fact is expert evidence remains vital in our system of justice, and the extent to which immunity from suit influences experts as they fulfil their overriding duty to the court requires careful consideration.