Jones v Kaney
| Jurisdiction | England & Wales |
| Judgment Date | 21 January 2010 |
| Neutral Citation | [2010] EWHC 61 (QB) |
| Docket Number | Case No: 9LV03061 |
| Court | Queen's Bench Division |
| Date | 21 January 2010 |
[2010] EWHC 61 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION TRANSFERRED FROM THE LIVERPOOL COUNTY COURT
Before: The Honourable Mr Justice Blake
Case No: 9LV03061
ROGER TER HAAR QC & DANIEL SHAPIRO (instructed by Hill Dickinson LLT) for the Claimant
PATRICK LAWRENCE QC (instructed by Berrymans Lace Mawer LLP) for the Defendant
Hearing dates: 10 December 2009
Approved Judgment
THE HON. MR JUSTICE BLAKE:
INTRODUCTION
This is an application by the Defendant for summary judgment striking out proceedings that were instituted by the Claimant against her for negligence. The Defendant was, at all material times, a Consultant Clinical Psychologist who acted as a forensic expert in Psychology. In May 2003 solicitors acting for the Claimant instructed the Defendant to advise on psychological aspects of a psychiatric injury for which he was seeking damages in a previous personal injury claim arising out of a road traffic accident in March 2001.
Following initial reports prepared by the Defendant, there was an issue in the litigation as to whether the Claimant was indeed suffering from post traumatic stress disorder (PTSD) or was consciously or unconsciously exaggerating his injuries. Whilst the Defendant had initially reported that the Claimant had symptoms that suggested a diagnosis of PTSD, the Consultant Psychiatrist, instructed by the Defendant's insurance company in the road traffic claim, concluded that he was exaggerating his physical symptoms.
In October 2004 the District Judge ordered that the experts hold discussions and prepare a joint statement. There was some delay in the respective experts meeting and lodging such a joint statement but on 14 November 2005 there was a telephone discussion that resulted in a draft of a joint statement being sent to the Defendant for consideration on the same day. It appears that the Defendant signed the joint statement without comment or amendment. Two extracts from that joint statement indicate that it was very damaging to the Claimant's prospects of success in recovering damages for his head injury in the road traffic claim. At paragraph 4, under the heading ‘Diagnosis’ it is recorded:
“Both experts agree that Mr Jones’ psychological reaction, after the accident, was no more than an adjustment reaction that did not reach the level of a psychiatric disorder of either a depressive disorder, or post traumatic stress disorder.”
At paragraph 5 it is recorded:
“Dr Kaney has found Mr Wynne Jones to be very deceptive and deceitful in his reporting. He denied any previous psychological trouble or past accidents, which is inconsistent with the records or other reports. Despite enquiry he did not report to her the other road traffic accident of 28.02.2001. We therefore agree that such inconsistencies would be suggestive of conscious mechanisms and would raise doubts of whether his subjective reporting was genuine.”
The Claimant's solicitors investigated with the Defendant why she had apparently changed her opinion so radically and on what basis she had found the Claimant to be very deceptive and deceitful in his reporting. The Defendant's answers in correspondence and telephone conversations pleaded in the particulars of claim, suggest an unhappy picture of how that joint statement came to be signed. They may be summarised as follows:
i) She had not seen the reports of the opposing expert at the time of the telephone conference;
ii) The Joint Statement, as drafted by the opposing expert, did not reflect what she had agreed in the telephone conversation, but she had felt under some pressure in agreeing it;
iii) Her true view was that the Claimant had been evasive rather than deceptive;
iv) It was her view that the Claimant did suffer PTSD which was now resolved.
v) She was happy for the Claimant's then solicitors to amend the joint statement.
Further, the particulars of claim allege that the Defendant had been made aware of the previous accident and other matters in his personal life in her instructions that she appears to have forgotten about when drawing the conclusion of either deceptiveness or evasiveness.
As a result of the damaging nature of the Joint Statement, and the inability of the Claimant's then solicitors to persuade the District Judge that she should no longer act as an expert in the RTA proceedings, the matter was settled for a sum that was considerably less than would have been the case if the Defendant had not signed the Joint Statement in the terms that she did.
After the road traffic litigation had been settled, the Claimant brought the present proceedings in April 2009. It was by that stage apparent that the Defendant's proposed response to any claim against her was a plea of witness immunity pursuant to the decision of the Court of Appeal in Stanton v Callaghan [2000] QB 75.
No defence has been entered on the merits. In any event as this is an application to strike-out the Defendant accepts for the purpose of this application, the Claimant's statement of facts must be assumed to be true. The defendant did not dispute that if admitted or proved these facts could constitute evidence of a failure to adhere to the duty of care to expected of a professional person holding herself out as a forensic expert in the field of psychology.
For his part, the Claimant, in both the pleadings and the skeleton argument, filed in response to the Defendant's application, recognised that in this case, as in Stanton v Callaghan he seeks to sue an expert retained by him to both advise and appear as a witness in litigation. Further, as in the Court of Appeal decision, the occasion of the negligence alleged is in respect of the revised position communicated by the Defendant in the Joint Expert report. If Stanton v Callaghan remained good law, it was accordingly binding upon this court and there would be no defence to the application to strike-out.
THE CORE SUBMISSIONS
Mr Ter Haar QC for the Claimant made the primary submission that Stanton v Callaghan was no longer binding law for two reasons. First, the reasons given by the Court of Appeal for applying the principle of absolute immunity to expert witnesses retained by a party in litigation relied substantially on the advocate immunity principle as then articulated in the cases of Rondel v Worsley [1969] 1AC 191 and Saif Ali v Sidney Mitchell and Co [1980] AC 198. Those decisions have been subsequently overturned by the Appellate Committee of the House of Lords in the case of Arthur J S Hall v Simons [2002] 1AC 615, and reliance on their reasoning and policy was undermined.
Second, the decision in Stanton v Callaghan preceded the coming into force of the Human Rights Act 1998 on 2 October 2000. By Section 6 of that Act, public authorities, including courts, are required to act compatibly with a Convention Right as defined in Schedule 1, including Article 6 of the European Convention on Human Rights – the right to a fair trial. Further, a court determining a question which has risen in connection with a Convention Right, must take into account any judgment of the European Court of Human Rights (see Section 2 (1)(a) HRA 1998). It was plain from the decision of European Court of Human Rights in Osman v The United Kingdom (28 October 1998) and [1999] 1FLR 193, that blanket immunities preventing claimants seeking damages in tort may be contrary to Article 6 if they are disproportionate having particular regard to its scope and application to the case at issue. Although the decision in Osman was not itself without some controversy (see the observations of Lord Brown-Wilkinson in Barratt v London Borough of Enfield [2001] 2 AC at 550 and p.558 C-560 D), it has subsequently become clear that domestic rules on restrictions on tortious liability, that were previously considered as a class of immunity, may have to be re-examined categorised as public policy reasons why no duty of care is held by the law of England and Wales to exist (see the case of Brooks v Commissioner of Police for the Metropolis [2005] UK HL 24, [2005] 1WLR 1495 and Van Colle v Chief Constable of the Hertfordshire Police [2008] UK HL 50, [2009] 1AC 225 per Lord Hope at paragraphs 72–74, when dealing with the associated case of Smith).
Alternatively, Mr Ter Haar submitted that if I were to conclude that Stanton v Callaghan remained an authority binding upon this court, it would also be binding upon the Court of Appeal, but there is good reason to believe that it would no longer be followed by a court that had the capacity to overrule it, namely the Supreme Court. I should therefore grant a certificate under Section 12 of the Administration of Justice Act 1969, as amended, to enable the Supreme Court to determine whether they would wish to grant leave to appeal to it in the present case.
Mr Lawrence QC responded to these submissions by contending that:
i) Although the policy basis for the decision in Stanton v Callaghan may have narrowed since the case was decided, none of the factors relied upon by the Claimant serves to deprive it of the status of binding authority.
ii) The decision has never been criticised by the Court of Appeal or the House of Lords. It was cited in the very case that the Claimant relies upon to undermine it, namely Arthur Hall v Simons, where Lord Hoffmann at 698 D-F assumed it to be correct.
iii) Further when the question of expert witness immunity from professional sanction was considered by the Court of Appeal in the case of Meadow v The General Medical Council [2006] EWCA (Civ) 1390, [2007] QB 462, it was common grounds that Stanton remained good law (see per Sir Anthony Clarke MR at paragraphs 11 to 16).
iv) The immunity is a long standing one of the common law, and has itself not been...
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