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Is it open season on experts after Jones v Kaney?

In Jones v Kaney, the Supreme Court changed the law and abolished the rule that gave experts immunity from being sued. Why did the Supreme Court change a rule that had existed for over 400 years? Are we now expecting a flood of claims against experts by the “aggressive clients” Lord Hope referred to?

The Supreme Court’s decision was not unanimous (it was divided 5 to 2 on this question) and a sharp rise in claims against experts is unlikely. However, as I indicated previously, this was not a surprising decision. Like advocates, experts provide a service for a fee. If they get it wrong and someone loses money, why should they not be held to account?

Those in favour of abolishing the expert’s immunity

The majority in the Supreme Court reviewed the rule, which originated from the practice by disgruntled claimants of suing their experts for libel or slander. A few possible reasons were identified for the rule:

  • Experts will be discouraged from providing a service if they face the risk of being sued.
  • Immunity is necessary so that experts can give their full and frank opinion.
  • Experts may be harassed by vexatious claims for breach of duty.
  • There will be a multiplicity of claims, where the evidence on the original liability issue would be re-opened again.

Lord Philips used the same test as was used when considering the immunity of advocates, namely would abolishing the rule bring such disadvantages to justify its retention. His view was that, as with advocates, removing experts’ immunity would not stop people from acting as experts or make them less likely to give an independent opinion.

Lord Brown was more direct, suggesting this would improve how experts act. In his view, the most likely consequence of removing the immunity would be:

“… a sharpened awareness of the risk of pitching their initial views of the merits of their client’s case too high or too inflexibly, lest these views come to expose and embarrass them at a later date.”

Lord Collins agreed:

“… it would tend to ensure a greater degree of care in the preparation of the initial report or joint report.”

In other words, they thought that the sanction of a claim would make experts more careful about what they say.

Those in favour of keeping the status quo

Lord Hope dissented, remaining of the view that expert witnesses were more like witnesses of fact and should be protected from claims so they could give evidence fearlessly. He seemed concerned about:

“… the risk of the expense and distress of a harassing litigation at the instance of an aggressive client which in some cases, given the vagaries of human nature, may be quite obvious.”

Lady Hale also dissented, being of the view that the court’s interest in protecting witnesses to ensure reliable evidence should be preferred to the interest of the expert’s client. She highlighted the problems that may arise in family law cases, referring to the:

“… understandable but usually unjustifiable desire of a disappointed litigant to blame someone else for his lack of success in court.”

In other words, she wanted to protect experts from people (disappointed litigants) who may blame them for losing their case.

How easy will it be to sue an expert?

Not very, is the glib answer, but nor will it be impossible. A claimant will face two main hurdles:

  • It will be necessary to prove negligence in providing an expert report (not an easy task on its own).
  • It will also be necessary to prove the causal link between the alleged negligent report and the case being lost (as opposed to other causes, such as the claimant’s own poor performance in the witness box).

If the original claim is not good, there is little point in suing the expert, unless it was his advice that led to the claim. It may also be that such claims will be put forward on a loss of chance basis, in the same way as claims against solicitors are often presented (see, for example, Allied Maples Group Ltd v Simmons & Simmons).

Is Jones v Kaney going to make a difference?

As a result of Jones v Kaney, are experts going to change their behaviour and be more cautious about their views, as suggested by some of the Lord Justices?

If that does happen, then that must be a good thing, but most experts are already conscious of their duties to the court and their client, and provide independent views. This judgment is more likely to be an issue for those experts who deal with a high volume of the same type of cases, where the risk of negligence is higher. Nonetheless, we have already seen a number of high profile cases where judges have been openly critical of an expert’s behaviour (London Fire and Emergency Planning Authority (LFEPA) v Halcrow Gilbert Associates Ltd is a recent example). I believe the Jones v Kaney judgment has the potential to make a real difference in such cases.

 

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