Immunity from suit abolished

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10 June 2011

The Supreme Court has overruled a decision of the High Court (Jones v Kaney 2011) removing the protection from being sued that has been afforded to expert witnesses. 

The case arose out of a road traffic accident where Dr Kaney, originally the expert appointed by the injured party, switched sides and signed a joint statement supporting the defendant’s expert saying that the injured party had exaggerated his injuries and been deceptive. The claim settled for significantly less than it would have done and the injured party launched a professional negligence claim against her. 

She pleaded immunity from suit, a rule that has been in existence for more than 400 years. The immunity of experts from claims in defamation and the immunity of factual witnesses were expressly not affected by the decision.

Whilst there has been a considerable amount of commentary on this case, it should not open the floodgates to claims against experts of cases that are lost. This did not arise when barristers lost their immunity from suit and so it is not likely to occur in respect of experts. 

If the expert gives an independent and unbiased opinion, which is within the range of reasonable expert opinions, he will have discharged his duty to the court and his client. It may however impact on insurance premiums and the costs of obtaining experts reports may rise. 

For further information contact Esther Woolford on (0117) 307 6926 or email esther.woolford@burges-salmon.com

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