The decision in Jones v Kaney
Introduction
In the decision of the Supreme Court in Jones v Kaney [1] the question was whether public policy justified conferring on an expert witness immunity from liability in negligence in relation to the performance of his duties. Prior to this decision it was thought that the immunity that protects a witness to fact also applied equally to prevent a client suing the expert he/she has retained in negligence.
In Jones v Kaney a seven-justice panel of the Supreme Court by a 5:2 majority swept away this immunity for claims in negligence or breach of the implied term to take reasonable care from the expert’s former client. It was concluded that the immunity from suit for breach of duty that expert witnesses have enjoyed in relation to their participation in legal proceedings should be abolished. It was emphasised that this conclusion did not extend to the absolute privilege that they enjoyed in respect of claims in defamation.
The duty of the expert witness
The expert witness owes the client a duty in contract and in delict/tort. He holds himself out as a skilled and competent person. The client relies upon his advice in determining whether to bring or defend proceedings, in considering settlement and in assessing the risk of proceeding to trial.
The client also relies upon the expert to give skilled and competent expert opinion evidence. This was acknowledged in Stanton v Callaghan [2]
“Mr Callaghan was a professional man who undertook, for reward, to provide advice within his expertise. The expectation of those who engaged him must have been that he would exercise the care and attention appropriate to what he was engaged to do. I would find it difficult to accept that Mr Callaghan did not share that expectation.”
The expert witness also owes a duty to the court to assist with all matters within their expertise, and this duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.[3]. The expert also has a duty to comply with any relevant code of ethics.
The Facts in Jones v Kaney
In March 2001, there was a road traffic accident in which Mr Jones was knocked down by a car driven by a drunk driver. He was stationary on his motorcycle waiting to turn at a road junction. The driver was uninsured and disqualified. Mr Jones suffered significant physical and psychological injuries.
As part of the legal action his Solicitors instructed a Consultant Orthopaedic Surgeon who recommended that a psychological report should be obtained. Dr Kaney was instructed to examine him and prepare a psychological report. In 2003 she gave an opinion that he was suffering from Post -Traumatic Stress Disorder (PTSD).
She was asked to review him in 2004, and she stated in her report that he did not have all the symptoms to warrant a diagnosis of PTSD, but he was still suffering from depression and had some symptoms of PTSD.
Those who were representing the driver obtained a report from Dr El-Assra, Consultant Psychiatrist and he expressed the view that Mr Jones was exaggerating his symptoms. The two experts were ordered by the District Judge to hold discussions and prepare a Joint Statement. The discussion took place on the telephone and Dr El-Assra prepared a Joint Statement which was signed by Dr Kaney without amendment or comment.
In that Joint Statement, it was agreed that the psychological reaction to the accident was no more than an adjustment reaction, and that it did not reach the level of an adjustment disorder or PTSD.
It was also recorded that Dr Kaney had found Mr Jones to be deceptive and deceitful in his reporting and it was agreed that his behaviour was suggestive of “conscious mechanisms” that raised doubt as to whether his reporting was genuine.
When Dr Kaney was asked why the statement and her reports were different she gave a number of explanations. She said that the statement did not reflect what was agreed but she felt pressurised to sign it. She stated her true view was that Mr Jones was evasive rather than deceptive and that he had suffered PTSD but that it had resolved. The Joint Statement was damaging to the claim and the case subsequently was settled at a compromised figure. The court had refused to allow the Joint Statement to be amended or another expert instructed.
Mr Jones sued Ms Kaney alleging that she had been negligent in her conduct of the telephone discussion and in signing the joint statement. The effect of her breach of duty was that he settled his claim at a lower value. The judge at first instance stuck out the claim but granted permission for a leap frog appeal to the Supreme Court
Witness immunity generally
Witnesses have been immune from civil suit for over 400 years [4]. In Arthur JS Hall & Co v Simons [5] it was said:
“A feature of the trial is that in the public interest all those directly taking part are given civil immunity for their participation…Thus the court, judge and jury, and the witnesses including expert witnesses are granted civil immunity. This is not just privilege for the purposes of the law of defamation but is true immunity.”
The absolute immunity rule which applies to witnesses of fact, as noted by Lord Hoffmann in Taylor v Director of the Serious Fraud Office [6] was said:
“to encourage freedom of speech and communication in judicial proceedings by relieving persons who take part in the judicial process from the fear of being sued for something they say.”
The early history of witness immunity was largely concerned with immunity from suit for defamation [7]. The immunity was established long before the development of the modern law of negligence and in an era when it was not common for experts to offer witness services for reward. The immunity was originally in the form of an absolute privilege against a claim for defamation [8]. The privilege was extended to other forms of immunity from suit to actions in tort/delict [9].
The immunity is based on public policy in protecting the administration of justice. The reason given for immunity has always been the effect on claims arising out of the conduct of litigation. The concern was that witnesses would be reluctant to testify or claimants would not wish to litigate for fear of being sued. Immunity would also protect those who would be subject to unjustified and vexations claims by disgruntled litigants.
In the House of Lords case of Darker v Chief Constable of West Midland Police [10] the issue was whether witness immunity extended to protect police officers who were alleged to have fabricated evidence, as opposed to having given false evidence. Their Lordships identified the following justification for witness immunity:
1. To protect witnesses who have given evidence in good faith from being harassed and vexed by unjustified claims.
2. To encourage the honest and well-meaning persons to assist justice in the interest of establishing the truth and to secure that justice may be done.
3. To secure that the witness will speak freely and fearlessly.
4. Lord Hope also felt that it was important in avoiding a multiplicity of actions in which the value or truth of the evidence of a witness would be tried all over again.
In JD v East Berkshire Health NHS Trust [11] the Court of Appeal held that in light of the decision in Darker there was a distinction to be drawn between the investigation of offences and the preparation of evidence. Witness immunity did not attach simply to the investigation process.
Expert witness immunity
There is a distinction between an expert witness and the normal witness to fact. The expert usually voluntarily undertakes the role of a witness and is paid to give evidence to the court. There never was complete immunity for expert witness evidence, any more than there was complete immunity for other witnesses. The general principle did not preclude prosecutions for perjury, or for perverting the course of justice, contempt of court or liability for malicious prosecution, or misfeasance in public office.
The observations of Lord Hoffmann and Lord Hobhouse in Arthur J S Hall & Co v Simons did not suggest that the fact that that the expert witness owed a duty of care to their clients was a reason to exclude them from immunity that is available to witnesses generally [12]. None of the early cases seriously challenged the view that the expert witness was immune from liability in negligence [13].
In the Scottish case of Watson v McEwan [14] the claimant employed a medical practitioner as her professional advisor with a view to an action being raised against her husband for separation and aliment. He then gave evidence for the husband in the same action. He was asked to do so because he had expressed views that indicated he would be helpful to the husband’s position. He referred in his evidence to information that he had learned on visiting the wife relevant to her state of health and he impressed the judge.
Following the case, she raised an action of damages against him for breach of confidentiality and slander. This case was important as the first case where immunity was invoked in response to a claim other than slander [15]. It was said that the privilege of a witness was one of the necessities of the administration of justice.
In Evans v London Hospital Medical College (University of London) [16] the claim related to negligence by forensic scientists who had provided post mortem reports to the police that led to the plaintiff being prosecuted for the murder of her son. At the trial, no evidence was led and she was acquitted. She alleged that there had been negligence in the performance of the post mortem. It was held that the experts were protected by witness immunity.
In Palmer v Durnford Ford [17] the initial claim was against a supplier and a repairer of a lorry tractor unit. The claim failed and the claimants subsequently sued an engineering expert on the ground that his incompetent report had led them to advance claims on a basis that was invalid. They also sued the Solicitors for negligence in engaging an incompetent expert. The medical expert persuaded the District Judge to strike out the claim against him on the basis of immunity from suit. On appeal, there was no challenge to the fact that witness immunity did extend to an expert. The question in issue was the extent of the immunity. It was held with reference to Saif Ali Sydney Mitchell & Co [18] (a decision relating to an advocate’s immunity from suit) that immunity could only extend to what could fairly be said to be work which was preliminary to giving evidence in court. This decision was referred to with approval in X (Minors) Bedfordshire County Council [19].
In Stanton v Callaghan [20] the Court of Appeal held that immunity of an expert witness extended to protect him from liability for negligence in preparing a joint statement for use in legal proceedings. The defendant was a structural engineer retained to assist in a claim against insurers on costs of dealing with subsidence in their house. He initially advised that total underpinning was required at a cost of £77,000. Subsequently when he prepared a Join Report with the insurers expert witness, he was persuaded to agree that infilling with polystyrene would be a satisfactory remedy at a cost of £21,000. The case settled on that basis.
The plaintiffs then brought a case on the basis that the experts change of view was negligent. The master refused an application to strike out the claim and the judge upheld him, but the Court of Appeal reversed the decision.
It was said:
“In my view, the public interest in facilitating full and frank discussion between experts before trial does require that each should be free to make proper concessions without fear that any departure from advice previously given to the party who has retained him will be seen as evidence of negligence. That, as it seems to me, is an area in which public policy justifies immunity. The immunity is needed in order to avoid the tension between a desire to assist the court and fear of the consequences of a departure from previous advice.” [21]
The decision in Jones v Kaney
The narrow issue raised by the appeal was whether the act of preparing a joint witness statement was one in respect of which an expert witness enjoys immunity from suit. Inevitably, however, the case raised the broader issue of whether public policy justifies conferring on an expert witness any immunity from liability in negligence in relation to the performance of his duties in that capacity.
It was recognised that the expert owed a duty to the court, and following Lord Woolf’s recommendations on access to justice the CPR set out the duties of experts which includes a duty to meet and where possible reach agreement with the expert on the other side. Since the expert agreed to perform the functions specified in the CPR there is no conflict with the duties owed to the client and the court.
It was noted that the expert witness must give his evidence honestly, even if this involves concessions that are contrary to the instructing client’s interest.
The court adopted the approach advocated by Lord Reid in Rondel v Worsley [22] which case considered immunity from suit enjoyed by advocates. It was considered that removal of immunity would not affect experts in deciding to act in cases, nor would it inhibit experts in complying with their duty to the court.
It was also considered that the expert who has performed his/her duty to the court was unlikely to be harassed by vexatious claims. It was noted that it was not easy for a lay litigant to mount a credible case that an expert has been negligent. No justification was shown for continuing to hold expert witnesses immune from suit in relation to evidence they give in court or for the views they express in anticipation of court proceedings.
Lord Brown noted that the removal of immunity would be a healthy development in the approach of expert witnesses to their ultimate task or “sole rationale” of assisting the court to a fair outcome of the dispute [23].
He also noted that the other advantage would be if the expert causes the client loss by adopting or adhering to an opinion outside the permissible range of reasonable expert opinions the wronged client would enjoy, rather than have denied to him by the rule of law, his proper remedy [24].
Lord Brown considered that the removal of immunity only applied to a witness selected, instructed and paid for by a party to litigation for his expertise and permitted on that account to give opinion evidence in the dispute. He specifically excluded a treating doctor or forensic pathologist who gave factual evidence as well as being asked for their professional opinions upon it without having been initially retained by either party to the dispute. The reservation for a “treating doctor” can only apply where the doctor is called upon to give evidence or has prepared a report for the specific purpose of giving evidence in the litigation [25].
There was also no intention in the decision to introduce a duty of care where no duty had previously existed and thus rendering an expert witness liable to the other side or anyone else involved in the litigation apart from her own client. There was no question of removing the absolute privilege which all witnesses enjoy against defamation, whether or not the person defamed is their client.
Conclusion
The essence of modern litigation is that the expert owes a duty to the court and not to those instructing them. It is also important that expert witnesses make concessions where appropriate and should not fear to do so due to the threat of litigation.
In Jones v Kaney immunity from suit was only withdrawn from the expert selected, instructed and paid by a party to litigation for his expertise and permitted on that account to give opinion evidence. This witness is distinguishable from the professional witness such as a treating doctor who may be called to give factual evidence in the case. It has been suggested that provided the doctor voluntarily agrees to give evidence then immunity is lost for the entirety of his evidence [26]. Witnesses to fact should retain immunity. The logic of the decision would also seem to suggest that the Single Joint expert could be sued by either party.
In Jones v Kaney the Supreme Court identified the benefits of abolishing immunity. Is is important that a wronged client has access to a proper remedy previously denied. Expert witnesses should be accountable and in particular if they pitched their initial opinion too high or too inflexibly.
The logic of the decision applies to every type of civil proceedings before any type of tribunal and to criminal cases. This does not affect the absolute privilege an expert enjoys in respect of claims for defamation for things said in court. Immunity from suit still extends to civil claims for perjury and conspiracy to defame brought by third parties or the opponents of the expert’s client.
In general, it does not touch on the immunity of a witness or a party to proceedings in respect of things said or done in the ordinary course of proceedings in respect of claims brought against him by an opposing party. Lords Hope and Cooke in agreement with Lord Hoffmann in Taylor v SFO [27] interpreted Evans v London Hospital Medical College on the basis that immunity was not engaged as there was no duty of care. However, in Jones v Kaney Lord Phillips treated Evans as an immunity case.
It is important to remember that civil litigation is not the only remedy open to a party dissatisfied with the performance of his, or the other side’s expert. In appropriate circumstances an application can be made for a wasted costs and report can be made to the expert’s professional body as in Meadow v GMC [28].
[1] [2011] UKSC 13, [2011] 2 WLR 823
[2] [2000] QB 75, 88E
[3] CPR 35.3
[4] Cutler v Dixon (1585) 4 Co Rep 14b; 76 ER 886
[5] [2002] 1 AC 615, 740; Stair, Institutions of the Law of Scotland (2nd ed, 1693) IV,1,5; R v Skinner (1772) Lofft 55
[6] [1999] 2 AC 177
[7] (1873) LR 8 QB 255
[8] Dawkins v Lord Rokeby (1873) LR 8 QB 255; Williamson v Umphray and Roberston (1890) 17 R 905
[9] Hargreaves v Bretherton [1959] 1 QB 45; Marrinan v Vibart [1963] 1 QB 528
[10] [2001] 1 AC 433
[11] [2003] EWCA Civ 1151
[12] X (Minors) v Bedfordshire County Council [1995] 2 AC 633;
[13] Palmer v Durnford Ford [1992] QB 483; Hughes v Lloyds Bank Plc [1998] PIQR 98
[14] [1905] AC 480
[15] para 140 Lord Hope, Jones v Kaney
[16] [1981] 1 WLR 184
[17] [1992] QB 483
[18] [1980] AC 198
[19] [1995] 2AC 633
[20] [2000] QB 75
[21] Chadwick LJ pp101-102 see also p100
[22] [1969] 1 AC 191
[23] [para 67]
[24] [para 68]; see also Smart v Forensic Science Service Ltd [2013] EWCA Civ 783; [2013] P.N.L.R. 32
[25] Hughes v Lloyds Bank plc [1998] P.I.Q.R. p98
[26] Para 14-007 Expert Evidence: Law and Practice, Fourth Edition, Sweet and Maxwell
[27] [1999] 2 A.C. 177
[28] Meadow v GMC [2006] EWCA Civ 1390; [2007] Q.B. 462; Kumar v GMC [2012] EWHC 2688 (Admin)
