England’s Supreme Court abolishes expert immunity

In a recent English Supreme Court decision, the immunity from being sued in negligence, enjoyed by experts in England and Wales for more than 400 years, was abolished. The court held that there is no justification for continuing to hold expert witnesses immune from legal proceedings in relation to evidence given by them in court or for their views given, in anticipation of court proceedings.

The appellant, Jones (J), appealed against a decision striking out his claim for negligence against the respondent psychologist, Kaney (K). J had been injured in a car accident and K had been instructed as an expert to prepare a report in relation to J’s claim. In his initial report, K suggested a diagnosis of post-traumatic stress disorder. The expert for the defence concluded that J was exaggerating his symptoms and so the court ordered that a joint expert report be prepared. The joint report was very damaging to J’s case and it transpired that K had signed the report without any comment or amendment. As a result, J’s claim settled for a much smaller sum. J issued proceedings against K for negligence and K’s defence was a plea of witness immunity, in accordance with the case of Stanton v. Callaghan [2000] QB 75. J’s case was struck out on the basis that the Stanton decision was binding upon the court. J appealed and the issue for determination on appeal was whether public policy continued to justify conferring immunity from liability for negligence on an expert witness in relation to the performance of his duties in that capacity.

Allowing the appeal, the Supreme Court held that the immunity from suit for breach of duty that expert witnesses had enjoyed in relation to their participation in legal proceedings should be abolished and the Stanton case overruled. The court said that there was no justification for the assumption that if expert witnesses were liable to be sued for breach of duty, they would be discouraged from providing services at all. All who provided professional services which involved a duty of care were, the court said, at risk of being sued for breach of their duty and they customarily insured against such risk. The court said that a lesson could be learned from the position of advocates in that removal of immunity had not resulted in any diminution of their readiness to perform their duty to the court.

Implications for Hong Kong?

It remains to be seen whether the decision will be followed by the Hong Kong Courts. The decision is likely to be persuasive if the issue arises in Hong Kong, given that much of Hong Kong’s common law is rooted in that of England. Experts may therefore wish to review their professional indemnity insurance or obtain such if they do not already have it.