Loshini Ramarmuty explains the abolition of immunity for expert witnesses in England.
 
INTRODUCTION
 
For more than 400 years since Cutler v Dixon 76 ER 886, expert witnesses in England enjoyed immunity from suites for breach of duty, whether in contract or tort, in respect of evidence given by them during legal proceedings.
 
On 30 March 2011, the Supreme Court of the United Kingdom, the apex court in England and Wales, by a majority decision of 5-2, abolished this immunity in Jones v Kaney [2011] UKSC 13.
 
FACTS
 
On 14 March 2011, Mr Jones was stationary on his motorcycle, waiting to turn at a road junction, when he was knocked down by a car driven by a Mr Bennett. Mr Bennett was drunk, he was uninsured and he was driving while disqualified. Mr Jones suffered significant physical injuries and psychiatric injuries, in particular post-traumatic stress disorder (PTSD), depression, an adjustment disorder and associated illness behaviour which manifested itself in chronic pain syndrome.
 
Mr Jones brought proceedings for personal injury and was represented by Kirwans Solicitors. Kirwans instructed Dr Kaney, a consultant clinical psychologist. She concluded that, some two years after the accident, Mr Jones was at that time suffering from PTSD. Kirwans issued proceedings and liability was admitted by the relevant insurer (“Fortis”), so that only the quantum of damages remained in issue.
 
Upon the instructions of Kirwans, Dr Kaney carried out a further examination on Mr Jones about 18 months later and concluded that, while he did not have all the symptoms to warrant a diagnosis of PTSD, Mr Jones was still suffering from depression and some of the symptoms of PTSD.
 
A subsequent report prepared by Dr El-Assra, a consultant psychiatrist instructed by Fortis, expressed the view that Mr Jones was exaggerating his physical symptoms.
 
The court ordered the experts to hold discussions and to prepare a joint statement. The discussion took place on the telephone and Mr El-Assra prepared a draft joint statement, which Dr Kaney signed without amendment or comment. The joint statement was damaging to Mr Jones’s claim. It recorded agreement that his psychological reaction to the accident was no more than an adjustment reaction that did not reach the level of a depressive disorder of PTSD.
 
The joint statement further stated that Dr Kaney had found Mr Jones to be deceptive and deceitful in his reporting, and that the experts agreed that his behaviour was suggestive of “conscious mechanisms” that raised doubts as to whether his subjective reporting was genuine.
 
It also seemed that although the joint statement did not reflect Dr Kaney’s true view, she had felt pressured into agreeing it.
 
Kirwans sought permission to change their psychiatric expert, but the district judge did not permit them to do so. Mr Jones was then constrained to settle his claim for a significantly lesser sum than would have been achieved had Dr Kaney not signed the joint statement in the terms which she did.
 
Mr Jones sued Dr Kaney for negligence. Dr Kaney relied on the defence of expert immunity. Her defence prevailed at first instance. However, Blake J granted a ‘leapfrog certificate’ for a direct appeal to the Supreme Court, as it involved a point of law of general public importance.
 
THE SUPREME COURT DECISION
 
The majority view
 
The majority of the Justices of the Supreme Court (Lord Phillips, Lord Brown, Lord Collins, Lord Kerr and Lord Dyson) allowed the appeal and thereby abolished immunity for expert witnesses from claims for breach of duty.
 
Expert witness and advocates
 
The Court considered the position of expert witness as analogous to that of advocates who had lost their immunity from claims in negligence. In Arthur J.S. Hall & Co v Simons [2002] 1 AC 615, the House of Lord had swept away an advocate’s immunity from liability in negligence, inside and outside of court, albeit not their absolute privilege from claims from defamation.
 
As the arguments for barrister’s immunity and expert witness immunity were similar, the majority of the judges in the Supreme Court were of the view that expert witness immunity should be likewise abolished.
 
Expert witness and lay witness
 
The Court found that there was a marked difference between an expert witness and a lay witness. An expert witness would have chosen to provide his services and would have voluntarily undertaken duties to his client for reward under contract whereas a lay witness did not have such motive for giving evidence.
 
A wrong should have a remedy
 
The first rule of law is that a wrong should have a remedy and there would need to be compelling reasons to maintain any immunity. The Court found that there were no compelling reasons and immunity should be removed so that the wronged client would enjoy, rather than be denied by rule of law, his proper remedy.
 
Effect on experts
 
The Court opined that the removal of the immunity was unlikely to have any drastic effect in deterring expert witnesses from giving evidence. One of the reasons for this was because experts were already at risk of professional disciplinary proceedings and such proceedings would have far more serious effects upon the experts in terms of professional standing and their livelihoods. Further, the experts are professional people who are insured or can obtain insurance readily, and those who are not insured can limit their liability by contract.
 
The Court also found it unlikely that the removal of immunity would cause an expert to tailor his evidence. One of the justifications for immunity put forward by Dr Kaney’s counsel was that the immunity was to ensure that the expert was able to give honest evidence in court, even if this proved adverse to the case of his own client. Counsel added that the immunity would allay any apprehension that the expert witness had in taking such a course. The Court rejected these arguments on the basis that removal of the barrister’s immunity had not resulted in any diminution of the advocate’s readiness to perform that duty. Lord Phillips, President of The Supreme Court, observed that:-
 
“It is paradoxical to postulate that in order to persuade an expert to perform the duty that he has undertaken to his client it is necessary to give him immunity from liability for breach of that duty.”
 
The Court also rejected the argument that immunity from suit was required to allow experts to comply with their duty to court. The Court was of the view that there was no conflict between the duty to the court and the duty to the client. As explained by Lord Dyson:
 
“There is no conflict between the duty owed by an expert to his client and his overriding duty to the court. His duty to the client is to perform his function as an expert with the reasonable skill and care of an expert drawn from the relevant discipline. This includes a duty to perform the overriding duty of assisting the court. Thus the discharge of the duty to the court cannot be a breach of duty to the client.”
 
Partial Immunity
 
Before Jones v Kaney, expert witnesses had enjoyed only partial immunity as the immunity did not cover the expert’s initial advice which was not primarily for the purpose of litigation. According to the Court, this could present a paradox where the expert might be reluctant in court proceedings to resile from a more extreme position that he may have taken in an earlier advice for fear of conceding that the earlier advice had been erroneous. The Court opined that the removal of the immunity would prevent an expert witness from pitching the merits of his client’s claim too high at any stage.
 
Vexatious Claims
 
The argument that removal of immunity would lead to vexatious claims being brought against experts by disgruntled clients was rejected by the Court. The Court found that it would not be easy for a litigant to support a vexatious claim without professional support and would most likely have his case struck out. Again, the Court made a comparison with barristers and noted that there had not been a flood of vexatious claims from disappointed litigants since the removal of the barrister’s immunity.
 
The dissenting view
 
Lord Hope and Lady Hale dissented and did not agree with the removal of the immunity enjoyed by expert witness.
 
Lord Hope stated that there should be a compelling reason before the longstanding immunity is removed and did not see any compelling reason for doing so. His Lordship added that the purpose of the rule that affords immunity to witnesses is to ensure that witnesses are not deterred from coming forward to give evidence in court and from feeling completely free to speak the truth.
 
Lord Hope also expressed the view that if there was a need to reform the law in this area, it ought to be dealt with by the Parliament instead of the Court. Lord Hope and Lady Hale placed reliance upon the Scottish case of Watson v M’Ewan [1905] AC 480 where protection of witness was extended to the preparation of evidence, in stating that the immunity should be retained. 

Lady Hale was particularly concerned about disappointed litigants as well as the potential impact of removing expert immunity on family proceedings.

CONCLUSION
 
It is important to note that whilst Jones v Kaney has abolished the principle of expert immunity, the Supreme Court’s decision does not affect the absolute privilege defence open to expert witnesses from defamation claims, nor does it undermine the long-established immunity of other witnesses in litigation.
 
Jones v Kaney may be a watershed for expert witnesses as the implications are wide. Some of the implications are:

Although this landmark decision is not binding in Malaysia, it will be interesting to see whether the Malaysian courts will follow the trend set by the Supreme Court in England.