1. “A feature of the trial is that in the public interest all those directly taking part are given civil immunity for their participation…Thus the court, judge and jury, and the witnesses including expert witnesses are granted civil immunity. This is not just privilege for the purposes of the law of defamation but is a true immunity” - Arthur JS Hall & Co v Simons [2002] 1 AC 615, 740, per Lord Hobhouse of Woodborough. In Stanton v Callaghan [1998] QB 75 the Court of Appeal held that the immunity of an expert witness extended to protect him from liability for negligence in preparing a joint statement for use in legal proceedings pursuant to RSC, Ord 38, r 38. The claim in this case relates precisely to such negligence and was, for that reason, struck out by Blake J on 22 January 2010. He certified, however, that the case involved a point of law of general public importance and granted a “leapfrog certificate” under section 12 of the Administration of Justice Act 1969, so that this appeal is brought directly from his decision.

2. The narrow issue raised by this appeal is whether the act of preparing a joint witness statement is one in respect of which an expert witness enjoys immunity from suit. Mr Ter Haar QC for the appellant was careful to emphasise at the outset of his submissions that he was not concerned to do more than establish that an expert witness enjoyed no immunity in relation to this activity. Inevitably, however, his submissions have raised the broader issue of whether public policy justifies conferring on an expert witness any immunity from liability in negligence in relation to the performance of his duties in that capacity. Surprisingly, this immunity has never been challenged in the past. It has simply been accepted that an immunity which protects witnesses of fact applies equally to prevent a client from suing in negligence the expert that he has retained.

The facts

3. In so far as this statement of the facts describes conduct on the part of the respondent, the facts are not proved but asserted in the particulars of claim. They are to be treated as true for the purpose of resolving the question of whether this claim was properly struck out. Understandably, the respondent has not suggested that the facts asserted do not disclose a good cause of action if she is susceptible to liability in negligence.

4. The action has its origin in a road traffic accident that occurred in Liverpool on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jones v Kaney

Details

AGLC: Jones v Kaney [2011] UKSC 13
Case: [2011] UKSC 13
Decision Date

CaseChat Overview and Summary

The case of Jones v Kaney involved an appeal by the claimant, Mr Jones, against the decision of the High Court to strike out his claim for damages against the respondent, Dr Kaney, a consultant clinical psychologist. The High Court had dismissed the claim on the basis that Dr Kaney enjoyed immunity from suit for her preparation of a joint statement with another expert witness in the context of personal injury litigation. The Supreme Court allowed the appeal, finding that expert witnesses do not enjoy immunity from suit for breach of duty in respect of their participation in legal proceedings. The Court considered the purposes of the immunity, the scope of the immunity, and whether the immunity was justified. The Court concluded that the immunity was not justified, as it would not prevent expert witnesses from providing their services, nor would it ensure that they gave full and frank evidence to the court. The Court also considered the effects of the immunity, and whether expert witnesses could be compared to advocates. The Court found that expert witnesses had more in common with advocates than with witnesses of fact, and that the immunity of expert witnesses was not justified. The Court allowed the appeal, holding that the immunity from suit for breach of duty that expert witnesses had enjoyed in relation to their participation in legal proceedings should be abolished.

Orders