Expert Immunity

Today I read this interesting article published by a law firm about "expert immunity":



Keeping up with the Jones case – will expert immunity survive?

If you have ever acted, currently act, or contemplate acting as an expert for litigants, then you ought to be aware of an interesting case before the English Supreme Court. The pending decision could abolish the long-standing doctrine that provides experts with immunity from suit for almost all work done in relation to litigation proceedings (expert immunity). This extends to oral evidence given at trial and preliminary steps undertaken in connection with giving evidence, such as the creation of expert reports.

The subject case on appeal from the English High Court is Jones v Kaney [2010] EWHC 61 (QB). Justice Blake of the English High Court summarily struck out a negligence claim against an expert witness on the basis that he was bound by the leading English case on point, Stanton v Callaghan (Stanton). Stanton upheld the absolute immunity from suit conferred on witnesses (including experts) with respect to testimony in court or work otherwise intimately related to court proceedings.

Since the Court of Appeal would also be bound by Stanton, Blake J granted the claimant, Mr Jones, a 'leapfrog' certificate for the Supreme Court to decide whether or not to allow an appeal, under s.12(1) of the Administration of Justice Act. The Supreme Court has granted permission, and the appeal will be heard on 11 and 12 January 2011.

Although it seems likely that the ordinary 'witness immunity' will be left unaltered, it is not inconceivable that expert immunity could be removed, particularly in view of:

• attacks on the public policy underpinning the doctrine of expert immunity;
• the fact that these days many experts derive income or indeed make a full-time career acting as an expert witness; and
• the judgment of Lord Hoffman in Arthur JS Hall & Co v Simons (Hall v Simons) which overruled the long standing principle that advocates, whether solicitors or barristers, were immune from suit for things done or omitted in the course of conducting a case in court.

It remains to be seen whether the Supreme Court will take the opportunity on this appeal to revisit the case law and the public policy considerations behind the immunity. If, however, expert immunity is abolished, experts who derive fees advising litigants should pay careful attention. The decision could well reverberate across all common law jurisdictions.