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An expert giving evidence has until now been immune from suit. On 11 Jan 2011, a panel of seven Justices heard arguments as to whether that blanket immunity from liability was compatible with the ECHR. The case, Jones v Kaney, had been granted a leap-frog certificate under the Administration of Justice Act 1969, s 12 by Blake J [2010] EWHC 61 (QB), [2010] 2 All ER 649.

Blake J had granted the defendant’s application for a strike-out of the action on the basis that he was bound by Stanton v Callaghan [1998] EWCA Civ 1176, [2000] QB 75 which provided immunity from suit for expert witnesses on the basis of public policy. The claimant sued the defendant psychologist for negligence arising from that expert’s conduct in reporting on his claim for psychiatric injury following a road traffic accident. The psychologist’s initial report suggested a diagnosis of post-traumatic stress disorder. The defendant’s psychiatric expert concluded that Mr Jones was exaggerating his physical symptoms and, as a result, a joint statement was ordered. The joint expert statement was signed by both experts and was very damaging to Mr Jones’s case in that it concluded that he had not suffered PTSD and that there were doubts as to the genuineness of his reporting of symptoms. It transpired that Dr Kaney had signed the joint statement without having read the defendant’s report and despite the fact that she did not agree with the joint statement’s contents. Blake J concluded that for an expert to be immune from liability in such circumstances was arguably incompatible with a claimant’s ECHR, art 6 rights:

“An expert who negligently prepares for a joint conference, fails to carefully scrutinise the proposed joint statement before signing it, or is persuaded to record entirely unfounded imputations against his instructing party based upon a failure to remember or record the instructions, can cause great damage to a party in civil proceedings. The policy of the CPR, and expedition and economy in the resolution of disputes means that the courts will not lightly permit a party to find another expert to replace one in which he has lost confidence. The Claimant was not so permitted in the present case. Once the damage is done in a careless concession in a joint report, it cannot be undone. The injured party is left with a wrong without a remedy.”

The decision of European Court of Human Rights in Osman v UK (28 October 1998) and [1999] 1FLR 193 makes it clear that blanket immunities preventing claimants seeking damages in tort may be contrary to art 6 if they are disproportionate having particular regard to their scope and application to the case at issue. The key question for the Justices will therefore be the extent to which the existing immunity for experts is proportionate.