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Jones v Kaney [2010] EWHC 61 (QB) – Professional negligence claim against expert witness

This case concerns the expert witness immunity rule which provides protection from a civil action to experts who give evidence and prepare reports for court purposes on the basis of public policy.

Facts:

The Claimant had previously pursued a claim for personal injuries following a road traffic accident. The Claimant had appointed the Defendant to prepare an expert report. In her initial report, the Defendant suggested that the Claimant was suffering from post traumatic stress disorder (PTSD).

At a later stage in the claim for personal injury, the Defendant and another expert had a meeting and prepared a joint statement. The statement was signed by the Defendant and the other expert which subsequently prejudiced the Claimant’s claim considerably. It later became apparent that the Defendant had signed the joint statement prepared by the other side’s expert, without making any comments and/or amendments. As a result, the Claimant’s claim settled for a smaller sum than was originally claimed.

The Claimant issued proceedings for professional negligence against the Defendant.

The Defendant made an application for summary judgment to strike out the Claimant’s claim and sought to rely upon the Court of Appeal decision in Stanton v Callaghan [2000] EWHC 61 (QB) pleading the expert witness immunity rule. The Defendant also submitted that there was no defence to an application to strike out.

The Claimant argued that Stanton v Callaghan was inconsistent with the right to a fair trial guaranteed by the Human Rights Act 1998. In addition, since the Human Rights Act 1998 coming into effect, Stanton v Callaghan was no longer binding. The Claimant also relied upon the House of Lords decision in Hall v Simons [2002] 1 AC 615 which provided that the expert witness rule could no longer survive. In Hall v Simons, a barrister was not found to have immunity.

Held:

The Defendant’s application to strike out was granted. The Judge considered himself bound by the decision of Stanton v Callaghan which remained good law.  The Judge made further comments stating ‘although I conclude that Stanton v Callaghan remains good law, I have doubts as to whether it will continue to remain so for the reasons canvassed by the Claimant and the discussion summarized above. I conclude that there is a substantial likelihood that on re-examination by a superior court, with power to do so; it will emerge that the public policy justification rule cannot support it’.

Comment:

Here, the court has sent a clear message that the expert witness immunity rule days may be numbered.

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