Jones v Kaney

A retained expert witness has no immunity from a claim by the client for breach of the duty of reasonable skill and care in preparing or giving evidence. The former immunity, including protection for work on a joint experts’ statement, was abolished.

The expert’s duty to the client includes compliance with the overriding duty to assist the court. Honest, independent evidence within the range of reasonable expert opinion therefore satisfies both duties. Public policy did not justify denying a remedy. The risks of reduced availability, inhibited candour, vexatious claims and collateral litigation were insufficient.

The decision leaves intact absolute privilege against defamation and does not impose liability on an adverse expert who owes no duty to the opposing party.

The appellant retained the respondent, a clinical psychologist, as an expert in personal injury proceedings. After producing reports supportive of his psychiatric claim, she signed a joint experts’ statement which materially weakened it. She later accepted that the statement did not accurately record her views. The appellant alleged that her negligence caused him to settle for substantially less than the claim’s proper value.

Blake J struck out the claim because Stanton v Callaghan [2000] QB 75 conferred immunity on an expert for preparing a joint statement. He granted a certificate under section 12 of the Administration of Justice Act 1969, permitting a direct appeal from [2010] EWHC 61 (QB).

The central issue was whether a retained expert remained immune from liability to the client for negligence in preparing a joint statement and, more broadly, in performing expert-witness duties.

1. Disposition. By a majority of five to two, the Supreme Court allowed the appeal and overturned the order striking out the claim. Lord Phillips gave the principal majority reasons. Lord Kerr agreed with him; Lord Collins and Lord Dyson also relied expressly on his reasons; and Lord Brown gave concurring reasons for allowing the appeal.

2. The expert’s duties. A retained expert undertakes to exercise reasonable skill and care. Section 13 of the Supply of Goods and Services Act 1982 implies that obligation into the contract, and a corresponding duty may arise in tort. CPR 35.3 makes assistance to the court the expert’s overriding duty. There is no conflict between the duties because the contractual service includes proper performance of the duty to the court. Independent evidence within the range of reasonable expert opinion satisfies both duties. An independent but professionally unreasonable opinion may nevertheless breach the duty to the client.

3. Public-policy justification. An immunity which denies a remedy for breach of duty must be justified as necessary in the public interest. Applying the approaches in Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 and Rondel v Worsley [1969] 1 AC 191, the respondent had not shown that abolition would probably cause disadvantages sufficient to make retention clearly justifiable.

   The suggested chilling effects were unpersuasive. Professional people commonly provide insured services while exposed to negligence claims. An honest expert would not breach a duty by making a proper concession or changing an opinion. Specious claims would ordinarily require supporting expert evidence and could be struck out. Experience following the abolition of advocates’ immunity in Arthur J S Hall & Co v Simons [2002] 1 AC 615 did not indicate a flood of vexatious litigation or reduced compliance with duties to the court.

4. Effect and limits. The immunity recognised in Stanton v Callaghan [2000] QB 75, including immunity for concessions in a joint statement, could no longer stand. The retained expert’s immunity from liability to the client for breach of contract or negligence was abolished. Absolute privilege against defamation remained unaffected. The decision did not impose liability on an adverse expert who owed no duty to the opposing litigant. Lord Phillips and Lord Dyson considered, without needing to decide, that similar reasoning was likely to apply to experts retained in criminal and family proceedings.

5. Dissent. Lord Hope and Lady Hale would have dismissed the appeal. They regarded witness immunity as a long-established rule supported by Watson v M’Ewan [1905] AC 480. In their view, an exception created without consultation or reliable evidence risked uncertain distinctions among experts, proceedings and duties. Any comprehensive reform should therefore have been undertaken by Parliament after Law Commission consideration.

1. United Kingdom Supreme Court: By a majority of five to two, allowed the appeal and overturned the order striking out the negligence claim.
2. High Court of Justice, Queen’s Bench Division: Blake J struck out the claim on 22 January 2010 because the respondent expert was immune from suit. He granted a leapfrog certificate under section 12 of the Administration of Justice Act 1969, permitting a direct appeal from [2010] EWHC 61 (QB).