Experts lose immunity

Updated January 2012

The Supreme Court's decision in Jones v Kaney [2011] UKSC 13 has removed the immunity from negligence claims that expert witnesses previously enjoyed in relation to their reports and evidence given in court.

Dr Kaney was the Claimant's expert, who, together with the Defendant's expert, signed a joint statement which stated that the Claimant was "very deceptive and deceitful". The claim was settled for less than would have been awarded, had the joint statement not been submitted, and the Claimant then sued Dr Kaney.

The claim against Dr Kaney was struck out because of expert's immunity but the case then made its way to the Supreme Court, whose decision was that an expert witness has:

• A duty to act with reasonable skill and care;
• A duty to the court which can coexist with a duty to a client; and
• No blanket immunity to a claim for negligence and can be sued for negligent advice.

The Supreme Court said that "every wrong should have a right" and immunity leaves the victim with no remedy, however serious the negligence.

David Woodward, head of the Private Business Group at TLT comments; "One wonders whether the expert's new exposure to the possibility of being sued will result in experts refusing instructions; increasing their fees or being the subject to vexatious negligence claims by aggrieved former clients? Only time will tell, but I do not think it will have a dramatic effect. I believe it will:

• Cause an expert to check the instructions are firmly within his/her field of expertise;
• Lead to the expert's terms of business attempting to limit their liability and negligence to the maximum level of their personal indemnity cover; and
• Encourage the expert to be more restrained in their evidence which may make it easier to achieve an agreement."

What advice do you give a client who believes that an expert has been negligent? Before Jones v Kaney the client could not sue the expert, so their only recourse would be to sue their solicitor. As the client agreement will be between the solicitor and expert, the solicitor would perhaps try to negotiate non-payment or a reduction in experts fees.

After Jones v Kaney the client is now able to sue the expert, who may well join the instructing solicitor in the action. Alternatively, the solicitor could become a witness. At trial the Judge will have to apportion liability and determine what loss has flowed from the particular negligence.

David continues; "As the incidents of negligence are, hopefully, rare, the impact on both experts and solicitors is unlikely to be significant. I would, however, encourage a careful consideration of the expert's terms of business to ensure that the expert accepts his responsibility towards the client, before the expert is officially instructed."

David Woodward is head of the Private Business Group at TLT, National Secretary of Resolution and a member of the Law Society's Family Law Committee. He specialises in complex financial matters, particularly involving businesses.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at January 2012. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

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