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Although Jones v Kaney will be remembered as the case that abolished the immunity from suit of expert witnesses (at least in respect of claims brought by a litigant to whom the expert owed a duty), it is notable that this was not the only policy issue on which the divided (5-2) Supreme Court clashed. The majority Justices (Lords Phillips, Brown, Collins, Kerr and Dyson) held that the appropriate starting point for the analysis of the question of the liability of expert witnesses for their evidence was that the existence of any immunity had to be clearly justified.

This was said to be based on the principle in Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 at pp 456-457;

“since the immunity may cut across the rights of others to a legal remedy and so runs counter to the policy that no wrong should be without a remedy, it should be only allowed with reluctance, and should not readily be extended. It should only be allowed where it is necessary to do so.”

The minority Justices (Lord Hope and Lady Hale) held that the existing rule (that witnesses may not be sued in respect of evidence given in court, or things said or done in contemplation of giving evidence in court, where the witness is an expert who accepts instructions from the litigant to give evidence for reward) was a long established rule based on House of Lords authority (Watson v M’Ewan [1905] AC 480) that reflected a clear policy choice intended to protect and maintain the integrity of judicial evidence gathering processes. The minority identified the purpose of the rule as being to ensure that witnesses are not deterred from coming forward to give evidence in court and from feeling completely free to speak the truth when they do so, without facing the risk of being harassed afterwards by actions in which allegations are made against them in an attempt to make them liable in damages. The principle that ‘Where there is a wrong there must be a remedy’ might be a valuable guide in the right context but not where a clear policy decision has been made and maintained that denied a remedy to litigants. The minority held that the immunity should be maintained unless it was shown to be unjustified. They pointed to the absence of any empirical data that suggested the immunity was unjustified or counterproductive.

The absence of empirical data and the lack of information for persons other than the litigants who might have an informed interest in the issue at stake was a further point of departure amongst the Justices. The minority regarded the factual and policy assumptions made by the majority as threatening change on an experimental basis in areas such as family and criminal law, where the impact of a change in the law was unpredictable. They observed that this made the topic more suitable for consideration by the Law Commission and reform, if thought appropriate, by Parliament rather than by the Supreme Court.

However the majority were undeterred. Whilst emphasising the importance of immunity for witnesses including opposing or court appointed expert witnesses, they were confident that the abolition of an immunity for ‘own’ expert witnesses would not reduce the number of practitioners willing to give expert evidence and would not make an expert witness less likely to be willing to concede points or to comply with his duty to the court. The majority also discounted the possibility of vexatious litigation against experts leading to a multiplicity of suits, holding that the courts were able to use existing mechanisms to protect expert witnesses against specious claims by disappointed litigants. Although the possibility was raised of treating the position of expert witnesses engaged in civil litigation differently from those engaged in criminal and family litigation, it is clear that the reasoning of Lords Phillips, Brown, Collins and Kerr admits of no such distinction or difference.

What remains to be seen is how this decision may affect the position of other witnesses. Lord Phillips held that experts were to be distinguished from other witnesses because they undertook duties for reward under contract and had a motive for giving evidence. Might this not also apply to other witnesses whose involvement with the litigation is based on contractual duties or carried out for reward? Process servers come readily to mind.

The primacy given to the principle: ‘Where there is a wrong there must be a remedy;’ also suggests that other witnesses may be threatened by a loss of immunity. What of the person who owes contractual duties of confidence; are they to be liable for any breach of confidence in a witness statement where they may not be able to rely on the defence of compulsion? This was one of the issues that was (as Lord Hope explained) decided in Watson v M’Ewan? Might this case now be decided differently? If police officers owe a duty of care to a person, could this affect the immunity of any officer who gives evidence or makes a witness statement in circumstances giving rise to an actionable breach of that duty?

The process of whittling away the scope of the immunity available to protect the participants in judicial processes appears to be far from over.