Expert Witness Immunity – the end of the road?

The definition of an expert witness is a witness who by virtue of their education, training, knowledge and professional expertise is more specialised in a particular subject beyond that of the average person, sufficient that others my officially and legally rely upon their knowledge concerning an evidence or fact, as long as it remains within the scope of the expert’s expertise.

Traditionally, an expert witness has been protected in court proceedings by expert witness immunity.  That is to say, because of the public interest in an expert witness being able to give truthful and fair evidence in court, without fear of being sued by a party whose case is lost, an expert has, up until now, been able to plead witness immunity from professional negligence suits.  The leading authority in expert witness immunity is the case of Stanton v Callaghan (1998 1 Q.B 75).

However, the case of Paul Wynne Jones v Sue Kaney [2010] EWHC 61 (QB) threatens to do away with expert witness immunity. 

Paul Wynne Jones v Sue Kaney

In  Wynne Jones v Kaney, the Claimant, Mr Wynne Jones, alleged that Ms Kaney provided negligent opinion when she acted as an expert witness in the capacity as Mr Jones’ psychiatric expert in a previous personal injury claim arising out of a road traffic accident.  Ms Kaney applied to have Mr Wynn Jones’ claim struck out on the grounds that she, as an expert witness, was able to rely on the protection of immunity  from suit.

 Mr Wynne Jones argued that the case of Stanton v Callaghan was no longer good law for the two following reasons:-

 1. that expert witness immunity can no longer survive given the decision taken by the House of Lords’ in 2000  in Arthur Hall v Simons [2000 3 WLR 543) in which a barrister’s immunity from suit was abolished; and

 2. the idea that an expert witness is allowed to rely on witness immunity is inconsistent with the right to a fair trial as enshrined by Article 6 of the European Convention on Human Rights. 

 Article 6 states: “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.

At first instance, Ms Kaney’s argument succeeded.  Mr Justice Blake held that although the case of Stanton was binding on both him and the Court of Appeal,  he noted that in the subsequent cases after Stanton, the policy basis for expert witness immunity had been narrowed or undermined.  He noted:

“there is a substantial likelihood that on re-examination by a superior court, with the power to do so, it will emerge that the public policy justification for the (expert witness immunity) rule cannot support it.”

Mr Justice Blake granted Mr Wynne Jones a leapfrog certificate enabling him to apply for permission to appeal the question directly to the Supreme Court thereby avoiding the need for the appeal to be heard first by the Court of Appeal.

Current Position

The Supreme Court is imminently to decide whether an expert witness should be granted immunity from professional negligence suits.  If the Supreme Court grants permission, there is a risk that expert witness immunity might be abolished altogether.  At the very least, it could be severely curtailed. 

This would mean that experts would then themselves be exposed to professional negligence claims

It is not yet clear which way the Supreme Court will go and whether it will take the opportunity to revisit the case law and public policy considerations behind expert witness immunity.  Should the Supreme Court decide to abolish expert witness immunity, then professional experts witnesses must look out.  A more tempered approach by the Supreme Court, however, would be to reduce the application of expert witness immunity, whereby a negligent or reckless expert could indeed find himself being sued for breaching the duty of case owed to his client.  Either way, professional indemnity insurance premiums would rise and it is also possible that we may see a decline in the number of experts putting themselves forward to act as experts in litigation where there is an overt risk that the expert could himself find that he could be sued for giving his opinion or conduct.

Please watch this space for an update.