Expert witnesses no longer immune from being sued

30 March 2011 by

Jones v Kaney – read judgment/press summary. The Supreme Court has ruled that the an expert giving advice in the course of litigation is no longer immune from being sued in negligence.

This case,  which had been granted a “leap-frog certificate” to go straight from the Divisional Court to the Supreme Court, overturns a long-established principle that expert witnesses should be protected from legal action on the basis of public policy.  The majority hold that the immunity from suit for breach of duty (whether in contract or in negligence)  contravenes the European Convention on Human Rights. The right to a fair trial under Article 6 impliedly entitles an individual, whose position in civil proceedings has been compromised by negligent advice, to take action against that expert to compensate for the damage caused.

The issue arose in this case because the defendant psychologist (“K”) had signed a joint expert report in civil proceedings taken by the claimant (“J”), who had been seeking damages for psychiatric injury following a road traffic accident. The psychologist’s initial report suggested a diagnosis of post-traumatic stress disorder. The defendant’s psychiatric expert concluded that J was exaggerating his physical symptoms and, as a result, a joint statement was ordered. The joint expert statement was signed by both experts and was very damaging to J’s case in that it concluded that he had not suffered PTSD and that there were doubts as to the genuineness of his reporting of symptoms. It transpired that K had signed the joint statement without having read the defendant’s report and despite the fact that she did not agree with the joint statement’s contents.

For the full background, see the UK Supreme Court Blog’s case preview. The claim was initially struck out on the basis of a 1998 Court of Appeal ruling which confirmed immunity of suit for expert witnesses on the basis of public policy. The judge (Blake J) conceded the application reluctantly since he had concluded that for an expert to be immune from liability in such circumstances was arguably incompatible with a claimant’s Article 6 rights:

An expert who negligently prepares for a joint conference, fails to carefully scrutinise the proposed joint statement before signing it, or is persuaded to record entirely unfounded imputations against his instructing party based upon a failure to remember or record the instructions, can cause great damage to a party in civil proceedings.

The public policy rationale for the immunity rule is one of common sense; in the interests of economy and expedition of proceedings, the courts will not lightly permit a party to find another expert to replace one in which he has lost confidence. However, this has the effect of leaving a party who is injured by a careless statement or piece of advice without a remedy.  Such a blanket immunity is contrary to the jurisprudence of the Strasbourg Court as clarified in the 1998 case of  Osman v UK, which establishes that blanket immunities preventing claimants seeking damages in tort may be contrary to art 6 if they are disproportionate having particular regard to their scope and application to the case at issue.

The following is taken from the Supreme Court press summary (references to the paragraphs in the judgment are the numerals in square brackets):

The judgment

The Supreme Court by a majority (Lord Hope and Lady Hale dissenting) allowed the appeal. Lord Phillips gives the lead judgment. The majority hold that the immunity from suit for breach of duty(whether in contract or in negligence) that expert witnesses have enjoyed in relation to their participation in legal proceedings should be abolished.

Reasons for the judgment

Witness immunity dates back over 400 years, long before the development of the modern lawof negligence and the practice of forensic experts to offer services to litigants for reward [11].It originally took the form of absolute privilege against defamation claims but was extended toall forms of suit [12]. It overlapped with the wider immunity formerly enjoyed by an advocatefrom negligence claims by his own client, before that immunity was abolished by the House ofLords in 2001 on the ground that it could no longer be justified [13].

The general rule was that every wrong should have a remedy and that any exception to this rulemust be justified as being necessary in the public interest and kept under review [51][88][113].

The primary rationale for the immunity was a concern that an expert witness might bereluctant to give evidence contrary to his client’s interest, in breach of his duty to the court, if there was a risk that this might lead his client to sue him [41]. In common with advocates,however, there was no conflict between the duty that the expert had to provide services to his client with reasonable skill and care, and the duty he owed to the court. The evidence did not suggest that the immunity was necessary to secure an adequate supply of expert witnesses [54][117].The removal of immunity for advocates had not diminished their readiness to performtheir duty, nor had there been a proliferation of vexatious claims or multiplicity of actions [57 -60][85].

For these reasons the majority concluded that no justification had been shown for continuing to hold expert witnesses immune from suit for breach of duty in relation to the evidence they give in court or for the views they express in anticipation of court proceedings [61]. This decision did not affect the continued enjoyment by expert witnesses of absolute privilege from claims in defamation [62], nor did it undermine the longstanding immunity of other witnessesin respect of litigation [125].

Lord Hope and Lady Hale, dissenting, disagreed with the majority’s approach of reviewing the justification for the immunity. The rule was longstanding and its application to claims beyond defamation in respect of evidence given by any witness was confirmed by the House of Lordsin  Watson v McEwan [1905] AC 480 [141]. The question therefore was whether an exception tothis rule could be justified [161][176].

The main concern arising from the decision of the majority was the effect on disappointed litigants liable to commence worthless but time consuming claims against their experts [165][188]. The lack of a secure principled basis for removing the immunity, of a clear dividing line between what was to be affected by the removal and what was not, and of reliable evidence to indicate what the effects might be,suggested that the wiser course was to leave any reform, if needed, to Parliament [173][189].

An analysis of this judgment by Guy Mansfield QC is here.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

1 comment;

  1. Jolly good – while expert information may be useful, we are aware of ‘experts’ who have their own axe to grind and use their position as witnesses to air their own particular brand of bias and discrimination.

    With the option of being penalised for such actions, it is right that this immunity should be removed and so make them more careful about what they say and about the ‘facts’ they present.

    Obviously, there are many people who act honourably and mistakes can be made in good faith so we’re not painting everyone with the same brush but pointing out our own experiences.

    A defence may equally depend on expert witnesses but in cases where Regina -v- A N Other, the equality under law for A N Other must be recognised.

    While the concerns of this article are noted, the fact is that justice in Britain today is loaded in favour of the prosecution with abundant unlawful legislation seeking to cause as much damage to A N Other as possible so if the scales are tipped back a bit by such penalties, perhaps it will cause unnecessary, worthless and time consuming legislation to be reviewed?

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: