In parallel with the current debate about whether the law of privacy should be developed by the courts or by parliament, seven justices of the Supreme Court have been divided on a similar issue relating to the creation of an exception to the general rule that grants immunity from suit to witnesses.

In Jones v Kaney [2011] UKSC 13, [2011] 2 All ER 671, the facts were that the appellant, Mr Jones, had been injured in a motorcycle accident. In addition to his physical injuries, he developed symptoms indicative of post-traumatic stress disorder (PTSD). His solicitors instructed Ms Kaney, a consultant clinical psychologist.

In her initial report, she diagnosed PTSD but in a subsequent report she said that Mr Jones was suffering from depression with some symptoms of PTSD. A telephone discussion subsequently took place between both experts. A joint statement was then prepared by the defendant’s expert which Ms Kaney signed without amendment or comment. However, the statement concluded that Mr Jones was experiencing no more than an adjustment reaction and raised questions as to whether he was genuine in reporting his symptoms.

Ms Kaney’s response to the inevitable questions from Mr Jones’ solicitors was that she had not seen the report of the other expert before their discussion, that she had felt under pressure to agree the statement, and that she believed that Mr Jones had been evasive rather than deceptive.

After a Daniels v Walker ([2000] EWCA Civ 508) application had been unsuccessful, the claim settled on much less favourable terms than had been predicted. Subsequently a claim for damages for negligence was issued against Ms Kaney but this was struck out under the witness indemnity rule and an appeal was leapfrogged to the Supreme Court.

The principle that witnesses generally are immune from suit can be traced back at least to the 16th century. Originally the object of the rule was to protect witnesses from suits for defamation in relation to their evidence. An often quoted dictum of Lord Mansfield in R v Skinner [1772] Lofft 55 is ‘Neither party, witness, counsel, jury or judge can be put to answer, civilly or criminally, for words spoken in office’.

A parallel form of immunity existed for advocates until 2002 when in Arthur J S Hall v Simons [2000] UKHL 38, [2002] 1 AC 615 the House of Lords held that apart from protection from defamation claims, that particular immunity no longer served a useful purpose.

However, the question of the immunity of expert witnesses in respect of activity outside the courtroom does not appear to have been addressed prior to Palmer v Durnford Ford [1992] QB 483 where it was held by Simon Tuckey QC (as he then was) that the immunity extended to work done as a preliminary to the giving of evidence, but not to work done for the purpose of advising the client. This principle was subsequently approved by the House of Lords in X (Minors) v Bedfordshire County Council [1995] 2 AC 633.

Following the implementation of the Civil Procedure Rules, expert witnesses owe an express duty to the court. Against that background, the Court of Appeal in Stanton v Callaghan [1998] EWCA Civ 1176, [2000] QB 75 revisited the duty owed by an expert both to his client and to the court, specifically in relation to whether an expert is immune from suit by his client for a report prepared for exchange prior to trial if, in the event, he does not give evidence at trial. The conclusion of the Court of Appeal was that public policy required the immunity to apply in order to avoid tension between a wish to assist the court and fear of the consequences of a departure from previous advice.

In Kaney, the narrow issue was whether, in civil proceedings, the act of preparing a joint statement by experts is one in which an expert witness enjoys immunity from suit. However, the Supreme Court adopted a broader approach and considered whether as a general rule expert witnesses should continue to enjoy immunity. The majority view, as expressed by lords Phillips, Brown, Collins, Kerr and Dyson, was that the immunity should be abolished except in relation to defamation. There was no evidence that the removal would create a chilling factor that would deter experts from acting as expert witnesses. Experts were no longer protected from wasted costs orders or disciplinary proceedings.

The expert has to give honest evidence, including concessions contrary to the interests of his client, but immunity is contrary to the principle that no wrong should be without a remedy. Any exception to this principle must be justified as being necessary in the public interest. Abolition would be a healthy development because it would encourage experts to take an objective view of the merits when advising their clients. If an expert gives an opinion outside the range of reasonable expert opinions, he will be in breach of his duty to his client. Public policy is not immutable.

Lord Hope and Lady Hale took a different view. The majority view was largely based on assumptions and not on evidence. The retrospective removal of immunity would be a decision that could only be reversed by parliament. The universality of the rule had been asserted and applied repeatedly. It is impossible to say what effect the removal of the immunity would have, and it is in the public interest that the administration of justice is not impeded. It is impossible to make such a change on an experimental basis and it is a topic more suitable for consideration by the Law Commission and reform by parliament.

While Lord Phillips and others are ready for the Supreme Court to decide issues of justification in terms of public policy, Kaney does not in fact break new grounds of fundamental principle. In Hall v Simons, the House of Lords had held that the public interest is satisfactorily protected by independent principles and powers of the courts rather than by parliament (per Lord Steyn). Immunity was created by judges and judges should say that the grounds for maintaining it no longer exist (per Lord Hoffman).

One substantive concern about Kaney is that the majority view was based on assumptions as to the likely consequences of abolition of the immunity rather than on evidence. In Hall v Simons, the Bar Council had been permitted to intervene and the anxieties of the minority in Kaney may have been allayed at least to some extent if, for example, the Academy of Experts had been permitted to intervene.

District Judge Tromans sits at Plymouth Combined Court Centre

Topics