Jones v Kaney

Jones v Kaney
Court	Supreme Court of the United Kingdom
Full case name	Paul Wynne Jones v Sue Kaney
Argued	11–12 January 2011
Decided	30 March 2011
Neutral citation	[2011] UKSC 13
Case history
Prior history	High Court (Blake J) [2010] EWHC 61 (QB)
Holding
Expert witnesses are not immune from being sued in tort or contract for their participation in legal proceedings (5:2 majority)
Case opinions
Majority	Lord Phillips (President); Lord Brown; Lord Collins; Lord Kerr; and Lord Dyson
Dissent	Lord Hope (Deputy President) and Lady Hale;
Area of law
Professional negligence; expert witness immunity from suit

Jones v Kaney [2011] UKSC 13 is a 2011 decision of the Supreme Court of the United Kingdom on whether expert witnesses retained by a party in litigation can be sued for professional negligence in England and Wales, or whether they have the benefit of immunity from suit. The case involved a psychologist (Kaney) instructed as an expert witness in a personal injury claim, who was said to have negligently signed a statement of matters agreed with the expert instructed by the opposing side, in which she made a number of concessions that weakened the claim considerably. As a result, according to the injured claimant (Jones), he had to settle the claim for much less than he would have obtained had his expert not been careless. To succeed in the claim, he had to overturn an earlier Court of Appeal decision that had decided that preparation of a joint statement with the other side's expert was covered by immunity from suit. Kaney therefore succeeded in getting the claim struck out before trial on an application heard by Mr Justice Blake in the High Court of Justice. The judge issued a certificate allowing the claimant to "leapfrog" the Court of Appeal and go straight to the Supreme Court to appeal against his decision.

The Supreme Court, by a majority of five to two, decided that expert witnesses were not immune in the law of England and Wales from claims in tort or contract for matters connected with their participation in legal proceedings. This reversed a line of authority dating back 400 years.^[1] The case considered the narrow issue, namely whether preparation of a joint statement by experts was immune from suit, and the wider public policy issue of whether litigants should be able to sue experts that they had instructed for breach of duty. There was discussion about whether removing the immunity would have a "chilling effect" on the willingness of experts to participate in court proceedings, although judges on both sides of the decision agreed that there was no empirical evidence on the point. Lord Phillips, a member of the majority, compared the situation of expert witnesses with that of advocates, on the basis that both owed duties to clients and to the court. Advocates' immunity from claims in negligence had been removed in 2001 in Hall v Simons. The change, he said, had not led to an increase in vexatious claims or a reduction in the performance of duties owed by advocates to the court. Lord Hope, in the minority, said that experts and advocates had different functions and so disagreed with the comparison. He also pointed out that English law would now be different from Scots law on this issue.

The judgment has been called a "landmark ruling"^[1] by the Law Society Gazette, with lawyers saying that the decision was expected but long overdue. One barrister, Clare Montgomery QC, looked at the implications for other participants in the legal process, commenting that the "process of whittling away the scope of the immunity" that they have "appears to be far from over".^[2] Other commentators were concerned that the decision would lead to reduction in the number of expert witnesses prepared to become involved with some particularly sensitive areas, such as child abuse cases. Lady Hale, the other dissenting judge, said that changing the law in this way was "irresponsible" and said that the position should instead be considered by the Law Commission and Parliament.^[3]