Jones v Kaney

An expert witness retained by a party to litigation was immune from a negligence claim concerning a joint expert statement under the binding authority of Stanton v Callaghan. Subsequent developments, including the abolition of advocates’ immunity and human-rights jurisprudence, had not removed that binding effect. The court nevertheless considered that the policy justification for a blanket immunity protecting expert witnesses might be too broad and disproportionate, particularly where the expert owed a contractual duty of care to the instructing party. The issue was suitable for appellate reconsideration. The claim was therefore struck out, but a certificate was granted to enable an application for leave to appeal to the Supreme Court.

The claimant had instructed the defendant, a consultant clinical psychologist, as an expert in a personal injury claim. After initially supporting a diagnosis of post-traumatic stress disorder, the defendant signed a joint statement which recorded that the claimant had no psychiatric disorder and had been deceptive and deceitful. The underlying claim settled for substantially less than it might otherwise have done.

The claimant sued the defendant in negligence. The defendant applied for summary judgment and strike-out, relying on witness immunity. The central issue was whether Stanton v Callaghan, which treated expert witnesses as immune from suit in respect of their work in litigation, remained binding despite later domestic and human-rights developments.

1. Application allowed. The negligence claim was struck out because Stanton v Callaghan remained binding on the High Court. The claimant’s pleaded facts were assumed to be true for the purpose of the application, and were capable of establishing professional negligence if immunity did not apply.
2. The reasoning in Stanton v Callaghan extended immunity to an expert’s change of position in a joint report or statement prepared for litigation. The Court of Appeal had identified the public policy of enabling experts to discuss cases fully and frankly, and to make proper concessions without fear of liability to the party who retained them.
3. The abolition of advocates’ immunity in Arthur J S Hall v Simons did not, without more, remove expert-witness immunity. Nor did the Human Rights Act 1998 or the decision in Osman v The United Kingdom amount to the direct statutory or judicial change required to displace a binding Court of Appeal authority. The approach in Kay v Lambeth London Borough Council required the High Court to follow binding precedent while expressing doubts and granting leave or a certificate where appropriate.
4. The court expressed substantial doubts about the continuing justification for a blanket immunity. The public interest in truthful and reliable expert evidence might be protected by judicial control, professional discipline and costs sanctions. It was difficult to justify immunity where an expert owed a duty of care in preparing initial advice and reports, but was immune from the consequences of a breach when signing a joint statement.
5. The point was one of general public importance, the court was bound by a fully considered Court of Appeal decision, and the defendant consented to a certificate. A certificate under section 12(1) of the Administration of Justice Act 1969 was therefore granted.

First-instance decision. The judgment records no earlier decision in the present litigation. A certificate was granted under section 12(1) of the Administration of Justice Act 1969 to permit an application for leave to appeal to the Supreme Court.