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07 April 2011
Issue: 7460 / Categories: Legal News
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No get-out for experts

Supreme Court rules out immunity for expert witnesses

Immunity from negligence actions for expert witnesses has been effectively abolished by the Supreme Court.

In Jones v Kaney [2011] UKSC 13, [2011] All ER (D) 346 (Mar), the court held by a 5-2 majority that experts’ immunity should be abolished in relation to evidence given in court and to views expressed in anticipation of court proceedings, overturning the Court of Appeal’s ruling in Stanton v Callaghan [1998] 4 All ER 961, [1999] 2 WLR 745.

The case involved a damages claim for alleged post-traumatic stress disorder following a car accident in 2001. Dr Kaney, a clinical psychologist, supported Jones’s allegations but later signed a statement to the effect that Jones had been “deceptive and deceitful” in reporting his injuries.

Jones launched professional negligence proceedings but Dr Kaney pleaded immunity from suit and applied to have the claim struck out.

Professor Penny Cooper, governor of the Expert Witness Institute, says: “There is a real risk that experts will be ‘deterred from coming forward to give evidence’ because of ‘the risk of being harassed afterwards by actions in which allegations are made against them in an attempt to make them liable in damages’ to use the words of Lord Hope who gave a dissenting judgment.

“The impact in the family courts will be particularly bad. Experts are already in short supply, many of them having been put off by what happened to Professor Sir Roy Meadow.”

Solicitors said experts will now need to review their indemnity insurance
policies.

Ian McConkey, professional risk partner at Beachcroft, said: “Insurers should consider the content of their policy cover for expert witnesses and the terms which might apply in light of the judgment. Experts will need to ensure their indemnity cover fits the work they undertake.

“Insurers and experts alike, however, may take comfort that the abolition of advocates’ immunity 10 years ago has not led to a major rush of civil claims and it is far from clear that the situation will be greatly different with experts.”

Mark Solon, managing director of legal training consultancy, Bond Solon, said: “This judgment marks the end of the amateur expert. Only wimps will withdraw, as professionals in all fields have always been open to be sued. Experts must now consider indemnity insurance” (see this issue pp 488-489).

Issue: 7460 / Categories: Legal News
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Jurit LLP—Caroline Williams

Jurit LLP—Caroline Williams

Private wealth and tax team welcomes cross-border specialist as consultant

Freeths—Michelle Kirkland Elias

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International hospitality and leisure specialist joins corporate team as partner

Flint Bishop—Deborah Niven

Flint Bishop—Deborah Niven

Firm appoints head of intellectual property to drive northern growth

NEWS
Talk of a reserved ‘Welsh seat’ on the Supreme Court is misplaced. In NLJ this week, Professor Graham Zellick KC explains that the Constitutional Reform Act treats ‘England and Wales’ as one jurisdiction, with no statutory Welsh slot
The government’s plan to curb jury trials has sparked ‘jury furore’. Writing in NLJ this week, David Locke, partner at Hill Dickinson, says the rationale is ‘grossly inadequate’
A year after the $1.5bn Bybit heist, crypto fraud is booming—but so is recovery. Writing in NLJ this week, Neil Holloway, founder and CEO of M2 Recovery, warns that scams hit at least $14bn in 2025, fuelled by ‘pig butchering’ cons and AI deepfakes
After Woodcock confirmed no general duty to warn, debate turns to the criminal law. Writing in NLJ this week, Charles Davey of The Barrister Group urges revival of misprision or a modern equivalent
Family courts are tightening control of expert evidence. Writing in NLJ this week, Dr Chris Pamplin says there is ‘no automatic right’ to call experts; attendance must be ‘necessary in the interests of justice’ under FPR Pt 25
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