Expert witness immunity removed

Expert witnesses have lost their 400-year-old immunity from being sued in the civil courts.







Today's historic decision by the Supreme Court follows a complaint by motorcyclist Paul Wynne Jones who was injured after he was hit by a car in Liverpool in March 2001.



His solicitors instructed consultant clinical psychologist Sue Kaney to prepare a report in support of his damages claim against the driver who was drunk, uninsured and driving while disqualified.



She concluded that Mr Wynne Jones was suffering from post-traumatic stress disorder but the defence consultant psychiatrist said he was exaggerating his symptoms.



The two experts were ordered to prepare a joint statement, and it was Mr Wynne Jones's case that Ms Kaney carried out this task negligently in signing a report agreeing that he had not suffered PTSD and had been deceitful.



This was so damaging to his claim that he settled for a significantly lower sum than he might have otherwise been awarded, and led to him issuing proceedings for negligence.



A High Court judge struck out Mr Wynne Jones's case, as he was bound by a 2000 Court of Appeal decision that an expert witness was entitled to immunity, and the matter went to a panel of seven Supreme Court justices as a point of general public importance.



Giving their reasons for allowing the appeal, by a majority of five to two, Lord Phillips rejected argument that expert witnesses would be discouraged from providing their services if they were liable to be sued for breach of duty.



"All who provide professional services which involve a duty of care are at risk of being sued for breach of that duty. They customarily insure against that risk."



He added that a lesson was to be learnt from the position of barristers.



"It was always believed that it was necessary that barristers should be immune from suit in order to ensure that they were not inhibited from performing their duty to the court.



"Yet removal of their immunity has not in my experience resulted in any diminution of the advocate's readiness to perform that duty.



"It would be quite wrong to perpetuate the immunity of expert witnesses out of mere conjecture that they will be reluctant to perform their duty to the court if they are not immune from suit for breach of duty."



Concluding that the immunity from being sued for breach of duty should be abolished, whether in contract or in negligence, he emphasised that this did not extend to the absolute privilege enjoyed by experts in respect of defamation claims.



Dissenting with Lord Hope, Lady Hale said the topic was more suitable for consideration by the Law Commission and reform, if thought appropriate, should be considered by Parliament rather than the Supreme Court.

Start your day with The Independent, sign up for daily news emails
ebooks
ebooksA year of political gossip, levity and intrigue from the sharpest pen in Westminster
Latest stories from i100
Have you tried new the Independent Digital Edition apps?

Day In a Page

A timely reminder of the bloody anniversary we all forgot

A timely reminder of the bloody anniversary we all forgot

Who remembers that this week we enter the 150th anniversary year of the end of the American Civil War, asks Robert Fisk
Homeless Veterans appeal: Former soldiers pay their respects to a friend who also served

Homeless Veterans appeal

Former soldiers pay their respects to a friend who also served
Downfall of Dustin 'Screech' Diamond, the 'Saved By The Bell' star charged with bar stabbing

Scarred by the bell

The downfall of the TV star charged with bar stabbing
Why 2014 was a year of technological let-downs

Why 2014 was a year of technological let-downs

Security breaches and overhyped start-ups dominated a year in which very little changed (save the size of your phone)
Cuba's golf revolution: But will the revolutionary nation take 'bourgeois' game to its heart?

Will revolutionary Cuba take 'bourgeois' golf to its heart?

Fidel Castro ridiculed the game – but now investment in leisure resort projects is welcome
The Locked Room Mysteries: As a new collection of the genre’s best is published, its editor Otto Penzler explains the rules of engagement

The Locked Room Mysteries

As a new collection of the genre’s best is published, its editor explains the rules of engagement
Amy Adams on playing painter Margaret Keane in Tim Burton's Big Eyes

How I made myself Keane

Amy Adams hadn’t wanted to take the role of artist Margaret Keane, because she’d had enough of playing victims. But then she had a daughter, and saw the painter in a new light
Ed Richards: Parting view of Ofcom chief. . . we hate jokes on the disabled

Parting view of Ofcom chief... we hate jokes on the disabled

Bad language once got TV viewers irate, inciting calls to broadcasting switchboards. But now there is a worse offender, says retiring head of the media watchdog, Ed Richards
A look back at fashion in 2014: Wear in review

Wear in review

A look back at fashion in 2014
Ian Herbert: My 10 hopes for sport in 2015. Might just one of them happen?

Ian Herbert: My 10 hopes for sport in 2015

Might just one of them happen?
War with Isis: The West needs more than a White Knight

The West needs more than a White Knight

Despite billions spent on weapons, the US has not been able to counter Isis's gruesome tactics, says Patrick Cockburn
Return to Helmand: Private Davey Graham recalls the day he was shot by the Taliban

'The day I was shot by the Taliban'

Private Davey Graham was shot five times during an ambush in 2007 - it was the first, controversial photograph to show the dangers our soldiers faced in Helmand province
Revealed: the best and worst airlines for delays

Revealed: the best and worst airlines for delays

Many flyers are failing to claim compensation to which they are entitled, a new survey has found
The stories that defined 2014: From the Scottish independence referendum to the Ice Bucket Challenge, our writers voice their opinions

The stories that defined 2014

From the Scottish independence referendum to the Ice Bucket Challenge, our writers voice their opinions
Stoke-on-Trent becomes first British city to be classified as 'disaster resilient' by the United Nations

Disaster looming? Now you know where to head...

Which British city has become the first to be awarded special 'resilience' status by the UN?