Matthew Lavy and Richard Osborne consider the removal of immunity from suit for expert witnesses and suggest that a positive change of approach can come out of it
Prior to the Supreme Court decision in Jones v Kaney  UKSC 13, an expert appointed by a party in relation to litigation could be sued (just like any other professional) for negligent advice or other actionable transgression, but when it came to his evidence for court he enjoyed complete immunity from suit: no matter how negligent the performance or how sub-standard the work, the client who instructed him and paid the bills would have no legal recourse. In the context of IT litigation, expert evidence often plays a pivotal role – an expert can (and frequently does) win or lose a case. Moreover, the fees and disbursements paid to an expert can be a very substantial part of the overall cost of litigation. That being so, and regardless of the public policy reasons for granting immunity in the first place, the notion that an IT expert could not be sued for negligence (however egregious) in relation to their evidence in court is one that might have come as a surprise to a great many clients: it is one thing to appreciate that an expert's duty to the court might lead to evidence unfavourable to one's case, but quite another to appreciate that one might have to live with negligent service. Now, by reason of Jones v Kaney, the position has changed.
In 2001, Mr Jones was injured in a road accident for which liability was admitted by the defendant's insurers. He suffered from significant physical and psychological injuries, including post-traumatic stress disorder ('PTSD') and chronic pain syndrome. He instructed solicitors to bring a claim in relation to his injuries, and they in turn instructed Dr Kaney, a consultant clinical psychologist. She prepared a report in July 2003 which expressed her opinion that, some two years post-accident, Mr Jones was suffering from PTSD. Some 18 months after that (in December 2004) she prepared a supplementary report stating that by that point Mr Jones was still suffering from depression with some symptoms of PTSD. The defendant insurer instructed its own expert, Dr El-Assra, who expressed the view that Mr Jones was guilty of exaggeration.
The experts were ordered by the court to hold discussions and prepare a joint statement setting out areas of agreement and disagreement between them. Such an order will be familiar to any IT expert who has conducted litigation in the TCC (albeit it would usually precede exchange of expert reports rather than following it as here). In accordance with the order, the two experts held a discussion by telephone, and on that same day a draft joint statement was prepared by Dr El-Assra.
The joint statement was extremely damaging to Mr Jones' case. It stated that Mr Jones had only suffered from an adjustment disorder which did not amount to either depression or PTSD. It also stated that Dr Kaney had found Mr Jones to be deceptive and deceitful in his reporting of his symptoms, which raised doubts as to whether Mr Jones' subjective account of his symptoms was genuine. Nevertheless, Dr Kaney signed the joint statement without amendment, even though she later stated that it did not accurately record what she had said during the telephone conference and did not accurately reflect her true view (which was that Mr Jones had suffered from PTSD which had subsequently resolved, and that she did not believe that he had been dishonest).
In the light of the Joint Statement, Mr Jones sought the permission of the court to instruct a new expert. However, this request was rejected. Accordingly, he was left with little option than to settle his claim for a significantly lower value than he might otherwise have expected to achieve had it not been for the joint statement. He sought to sue Dr Kaney.
Perhaps predictably, Dr Kaney claimed immunity. At first instance she was successful and Mr Jones' claim was struck out, albeit the judge at first instance issued a Leapfrog Certificate and the question of immunity thus came before the Supreme Court.
Supreme Court Decision
By a majority of five to two, the Supreme Court decided that the immunity should be removed. In doing so, it appears that the majority was influenced by its view that it should begin from the presumption that a wronged party should, absent strong arguments to the contrary, have a remedy at law. The decision was also influenced by the analogous position of barristers. They too had enjoyed a historic immunity from liability for negligence, though this was removed by the House of Lords in Hall v Simons  UKHL 38.
An obvious concern was that experts might be deterred from providing their services if they were at risk of being sued, though it was felt by the majority not to be a persuasive argument. Lord Phillips pointed out that experts are already subject to the professional standards imposed by their regulatory bodies, and could be at risk of disciplinary proceedings for giving incompetent evidence. Such proceedings were more likely to have a chilling effect than the threat of litigation as they could result in an expert losing a right to practice and, ultimately, livelihood. In addition, a claim alleging negligence against an expert witness was likely to be a difficult and complex one to bring, and professional indemnity insurance was available to ensure that payment of any damages award would not fall at the door of the expert personally. The majority also concluded that the removal of immunity would not diminish the quality of the expert evidence provided to the courts: just as barristers had continued to comply with their duties after the abolition of immunity, rather than succumbing to pressure to subordinate them to the interests of their clients, there was no reason to doubt that the position would be the same for experts. Finally, as Lord Phillips noted, although there was obviously a legitimate desire to protect experts from vexatious claims by their clients following unsuccessful litigation, this was unlikely to be a common occurrence. In order to bring a claim against an expert on the basis that concessions had been wrongly made, it would generally be necessary to obtain supportive evidence from a further expert. That would itself present a significant barrier for a vexatious litigant, quite aside from the expense which obtaining such evidence would entail.
The Practical Effect for IT Litigation
Much has been written about Jones v Kaney, the undoubted tensions of public policy with which the decision had to grapple, and where the decision leaves the law of immunity more generally. Much has also been written about the potential impact of the decision on expert witnesses, their willingness to act in litigation and whether it might change their behaviour when acting. Predictions (in some cases dire) have been made as to the possibility of a shrinking pool of experts willing to stick their heads above the parapet to risk being sued by disgruntled clients. Whilst there may well be some areas of expertise affected in that way, we doubt that this change in the law will have an adverse effect on the pool of experts willing to act for parties in IT litigation. IT experts (unlike, for example, doctors) may not necessarily be governed by professional bodies whose disciplinary tribunals posed a threat even in the absence of immunity from suit; and in that sense, the exposure after Jones v Kaney is definitely new. However, IT experts have always had their reputations to protect. Reputation, unlike a negligence suit, cannot be protected by professional indemnity insurance. In any event, many (perhaps most) IT consultants are well used to big, complicated, high-risk projects where large sums of money are at stake and where there is an ever-present possibility of being sued if it goes wrong – for such professionals, giving evidence in court without the shield of immunity should be no different from any other day in the office!
Jones v Kaney will be remembered for the important proposition of law for which it is authority. However, the facts of the case also give pause for thought. For an expert to sign up to a Joint Statement that does not reflect her views does seem to be plainly negligent. However, Dr Kaney's plea that she felt pressured into signing is something with which many experts involved in heavy IT litigation may have some sympathy. IT experts can and regularly do come under intense pressure to to agree as much as possible in Joint Statements, with the result that Without Prejudice discussions are an unpleasant experience, and the resulting Joint Statements consist of compromise wording that fully reflects neither expert's view but instead consists only of a bland set of propositions to which both experts are (just about) prepared to sign up.
The pressure to agree can come from all sides: an opponent, an instructing solicitor or even the court (narrowing the issues being an important facet of modern litigation). Seeking compromise is also human nature, and the ability to find common ground and an acceptable workaround to apparently intractable problems would (outside the context of litigation) generally be considered to be a mark of professional competence and laudable pragmatism. However, as Dr Kaney's illustration shows, agreeing the contents of a Joint Statement can be dangerous. The product of bland compromise is also not particularly useful. In IT litigation, where expert reports can be voluminous and complex, it seems to us that the real benefit of Joint Statements is to record in accessible and comprehensible form the extent and nature of the dispute between the experts on important points. Fudged and illusory agreement does not help the parties (or, we venture to suggest, the court). What helps is a clear articulation of where the battleground lies and why – a tool to understand the expert evidence. If experts engaged in IT litigation use their Without Prejudice discussions and the Joint Statement exercise to understand and articulate their disagreements and if they resist the temptation to compromise (albeit recording true areas of agreement), they will not fall into Dr Kaney's trap and – immunity from suit or no – should have nothing to fear from the Joint Statement process. They will also be doing a service to their client and, we think, the Court.
Matthew Lavy and Richard Osborne are barristers specialising in commercial and technology disputes. They are members of the IT and Telecoms Group at 4 Pump Court: http://4pumpcourt.co.uk/