Brave new world for expert witnesses

Experts 400 year old immunity removed

It has been a whirlwind week of change in the law and the Supreme Court has now added to this with the landmark decision in Jones v Kaney on 30 March 2011.

The Supreme Court decided by a majority of 5 to 2 that there was no justification for continuing to hold expert witnesses immune from suit in relation to evidence they give in Court or for views they express in anticipation of Court proceedings.

The decision arose from a personal injury case. Paul Wynne Jones was injured in a motor accident. His lawyers instructed expert psychologist, Sue Kaney, to prepare a report in support of his claim. She concluded that Mr Wynne Jones was suffering from Post Traumatic Stress Disorder (PTSD). The Defendant's lawyers, however, instructed their own expert psychiatrist who said Mr Wynne Jones was exaggerating his symptoms. As often happens in more serious cases, the two experts were ordered by the Court to prepare a Joint Statement. It was Mr Wynne Jones' case that Sue Kaney carried out this task negligently in signing a Joint Report agreeing that he had not suffered PTSD and had been deceitful. Clearly this had a significant effect on the value of his personal injury claim.

Historically experts have been granted immunity from suit for policy reasons. It was felt that if experts were at risk of claims, they would be reluctant to provide their services at all and, furthermore, they would be reluctant to give evidence that was contrary to their client's interests. These policy arguments have now been firmly rejected.

Commenting on this landmark case, Kelvin Farmaner, Head of the Insurance Litigation Team at Trethowans said "This marks a brave new world for expert witnesses and they would be wise to review their Professional Indemnity Insurance arrangements swiftly".