Expert Witnesses Stripped Of Immunity

3rd August 2011

The recent case of Jones v Kaney (2011) UKSC13, has removed from expert witnesses their immunity from being sued by clients.

In this Kaney was retained to provide an expert testimony by Jones solicitor. In a joint meeting with the other expert, Kaney signed a draft joint statement prepared by the other expert without reading or commenting on the statement. The joint statement led to the case being settled at a significantly lower figure than would have been obtained. Jones then issued a claim against Kaney, with Kaney’s defence being that expert witnesses have immunity from suit.

In giving their verdict the Court decided that the removal of an expert’s immunity does not conflict with an expert’s duty to the Court under the Civil Procedure Rules Part 35. Essentially the Courts recognise that a duty to the client takes into account the expert’s obligations to help the Court in providing expert evidence, and that any expert witness instructed by a client in giving evidence would need to comply with these duties. In accepting instructions to act, the expert agrees with the client that they will perform the duties that they owe to the Court.

The Supreme Court’s decision was concerned only with the liability of the expert retained by the client and as such the Court’s decision did not clarify whether this removes immunity for single joint experts or those appointed directly by the Courts. Nevertheless the judgement in Jones v Kaney reaffirms that one should only act as an expert witness where they have the skills, expertise and competence in the area they are providing expert services. The removal of expert immunity underlines the need for experts to ensure that they are entirely comfortable with the opinion they provide, and be highly professional in their approach to the provision of opinion and advice. This is always something that George F White have stood by and we do not believe that the verdict in this case erects barriers to the expert witness services we provide.

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