Jones v Kaney
Supreme Court 2011
Most of us would not give a second thought to the consequences of someone we had asked for advice giving that advice negligently. We would start with the assumption that where there has been such negligent advice we would have a right to hold the person we asked for advice to account for any losses we suffer as a result. This is one of two key underlying principles of English law: that where there is a wrong there should be a remedy.
The second principle is that the obligation of a court is to get to the truth and anything that may get in the way of that end should be put to one side. So, if there is fear that in stating your mind in court you could be liable to someone then that should be dealt with and those speaking in court given immunity.
Unfortunately, there is a tension between these two very reasonable and quite proper presumptions. That tension arises when someone is paid or retained to act for another before the court. The immunity versus remedy battle was first fought in relation to advocates for the parties. In 2002, in Arthur JS Hall & Co v Simons, the immunity was removed from advocates, except for claims of defamation, as advocates needed to be able to make accusations.
Recently the battle lines have been drawn again, this time in relation to experts (see Back to basics, CM April).
Paul Jones alleged that he was suffering from post-traumatic stress disorder as a result of a road traffic accident in 2001. He engaged Dr Sue Kaney, a clinical psychologist, as an expert witness in his claim for damages. Dr Kaney was initially supportive of that claim, but later signed a joint statement agreeing that Jones was “deceptive and deceitful”, which seriously compromised his claim and he settled for less than he might have.
Jones then commenced proceedings against Dr Kaney for negligence, Judge Blake in the High Court found that he was bound by 1998 authority Stanton v Callaghan giving expert witnesses immunity.
But the Supreme Court decided by a majority of 5 to 2 that experts should no longer be afforded any immunity if they gave their evidence negligently.
Rob Horne’s analysis
Prior to Jones v Kaney there had been an interesting question on whether expert immunity extended to other forms of dispute resolution,
for example adjudications. However, as the immunity has now been swept aside even in court that question no longer needs answering.
There do, however, remain some quite important issues which the court did not address or specifically allowed to continue. In relation to the latter, the court did not change the position in relation to witnesses of fact or indeed the judge himself. Therefore, both the judge and witnesses giving factual evidence can be negligent as long as they uphold their duty to the court.
There is also no indication as to where this leaves court-appointed experts and single joint experts, the appointment of which are both becoming more frequent.
The court did not address how to deal with those people who give evidence as both a factual witness and an expert. The key difference between a factual witness and an expert being that an expert gives an opinion. So, take as an example a professional engineer who had been managing a project. He may in one sentence be providing a factual account of what he saw on site and in the next giving an opinion on whether fill material had been spread and then compacted adequately during the construction of a road.
The two dissenting judges identified these difficult areas but no solution was found. Therefore all experts would be well advised to review their terms and conditions and all those appointing experts should be aware of new exclusion of liability being introduced.
Rob Horne is a partner in dispute avoidance and resolution at Trowers & Hamlins. Tel: 020 7423 8000
