Jones v Kaney

JurisdictionEngland & Wales
JudgeLORD PHILLIPS,LORD BROWN,LORD COLLINS,LORD KERR,LORD DYSON,LORD HOPE,LADY HALE
Judgment Date30 March 2011
Neutral Citation[2011] UKSC 13
Date30 March 2011
CourtSupreme Court
Jones
(Appellant)
and
Kaney
(Respondent)

[2011] UKSC 13

before

Lord Phillips, President

Lord Hope, Deputy President

Lady Hale

Lord Brown

Lord Collins

Lord Kerr

Lord Dyson

THE SUPREME COURT

Hilary Term

On appeal from: [2010] EWHC 61(QB)

Appellant

Roger Ter Haar QC

Daniel Shapiro

(Instructed by Hill Dickinson LLP)

Respondent

Patrick Lawrence QC

Charles Phipps

(Instructed by Berrymans Lace Mawer LLP)

LORD PHILLIPS

Introduction

1

"A feature of the trial is that in the public interest all those directly taking part are given civil immunity for their participation … Thus the court, judge and jury, and the witnesses including expert witnesses are granted civil immunity. This is not just privilege for the purposes of the law of defamation but is a true immunity" - Arthur JS Hall & Co v Simons [2002] 1 AC 615, 740, per Lord Hobhouse of Woodborough. In Stanton v Callaghan [1998] QB 75 the Court of Appeal held that the immunity of an expert witness extended to protect him from liability for negligence in preparing a joint statement for use in legal proceedings pursuant to RSC, Ord 38, r 38. The claim in this case relates precisely to such negligence and was, for that reason, struck out by Blake J on 22 January 2010. He certified, however, that the case involved a point of law of general public importance and granted a "leapfrog certificate" under section 12 of the Administration of Justice Act 1969, so that this appeal is brought directly from his decision.

2

The narrow issue raised by this appeal is whether the act of preparing a joint witness statement is one in respect of which an expert witness enjoys immunity from suit. Mr Ter Haar QC for the appellant was careful to emphasise at the outset of his submissions that he was not concerned to do more than establish that an expert witness enjoyed no immunity in relation to this activity. Inevitably, however, his submissions have raised the broader issue of whether public policy justifies conferring on an expert witness any immunity from liability in negligence in relation to the performance of his duties in that capacity. Surprisingly, this immunity has never been challenged in the past. It has simply been accepted that an immunity which protects witnesses of fact applies equally to prevent a client from suing in negligence the expert that he has retained.

The facts

3

In so far as this statement of the facts describes conduct on the part of the respondent, the facts are not proved but asserted in the particulars of claim. They are to be treated as true for the purpose of resolving the question of whether this claim was properly struck out. Understandably, the respondent has not suggested that the facts asserted do not disclose a good cause of action if she is susceptible to liability in negligence.

4

The action has its origin in a road traffic accident that occurred in Liverpool on 14 March 2001. The appellant was stationary on his motorcycle, waiting to turn at a road junction, when he was knocked down by a car driven by a Mr Bennett. Mr Bennett was drunk, he was uninsured and he was driving while disqualified.

5

The appellant suffered significant physical injuries, but these were not of such severity as to dwarf the significance of the psychiatric consequences of his accident. These were post traumatic stress disorder (PTSD), depression, an adjustment disorder and associated illness behaviour which manifested itself in chronic pain syndrome.

6

On 20 March 2001 the appellant instructed solicitors ("Kirwans") to act for him in personal injury proceedings. Kirwans instructed a consultant orthopaedic surgeon who advised that an opinion from a clinical psychologist would be of help. The respondent is a consultant clinical psychologist. In May 2003 Kirwans instructed her to examine the appellant and prepare a report for the purposes of litigation. She prepared a report dated 29 July 2003 in which she expressed the view, inter alia, that the appellant was at that time suffering from PTSD. Kirwans issued proceedings on 26 September 2003 against Mr Bennett and the Motor Insurance Bureau. The latter was replaced by the relevant insurer ("Fortis"). Fortis admitted liability on 17 February 2004, so that only quantum remained in issue.

7

Pursuant to instructions from Kirwans, the respondent carried out a further examination of the appellant and issued a second report dated 10 December 2004. This stated that the appellant did not have all the symptoms to warrant a diagnosis of PTSD, but was still suffering from depression and some of the symptoms of PTSD. A subsequent report prepared by Dr El-Assra, a consultant psychiatrist instructed by Fortis, expressed the view that the appellant was exaggerating his physical symptoms. The district judge ordered the two experts to hold discussions and to prepare a joint statement. The discussion took place on the telephone and Mr El-Assra prepared a draft joint statement, which the respondent signed without amendment or comment.

8

The joint statement was damaging to the appellant's claim. It recorded agreement that his psychological reaction to the accident was no more than an adjustment reaction that did not reach the level of a depressive disorder of PTSD. It further stated that the respondent had found the appellant to be deceptive and deceitful in his reporting, and that the experts agreed that his behaviour was suggestive of "conscious mechanisms" that raised doubts as to whether his subjective reporting was genuine.

9

When taxed by Kirwans with the discrepancy between the joint report that she had signed and her earlier assessments the respondent gave what Blake J rightly described as an unhappy picture of how the joint statement came to be signed, 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."

10

Kirwans sought permission to change their psychiatric expert, but the district judge would not permit this. It is the appellant's case that Kirwans were then constrained to settle his claim for significantly less than the settlement that would have been achieved had not the respondent signed the joint statement in the terms in which she did.

The current state of the law

11

The immunity of expert witnesses, as propounded by the Court of Appeal in Stanton v Callaghan, has a long history. This dates back over 400 years – see Cutler v Dixon (1585) 4 Co Rep 14b; 76 ER 886. Thus the immunity was established long before the development of the modern law of negligence and, in particular, the recognition of the possibility of liability for negligent misstatement. It also dates back to an era long before it became common for forensic experts to offer their services under contracts for reward. The immunity has its origin in a reaction to an actual or perceived tendency on the part of disgruntled litigants, or defendants in criminal proceedings, to bring proceedings for libel or slander against those who had given evidence against them. Thus the immunity originally took the form of absolute privilege against a claim for defamation and it extended to all who took part in legal proceedings. In Dawkins v Lord Rokeby (1873) LR 8 QB 255, 263 Kelly CB stated:

"The authorities are clear, uniform and conclusive, that no action of libel or slander lies, whether against judges, counsel, witnesses or parties, for words written or spoken in the ordinary course of any proceeding before any court or tribunal recognized by law."

12

This privilege was extended, in the form of immunity from suit, to other forms of action in tort. In Hargreaves v Bretherton [1959] 1 QB 45 a man who had been convicted of fraud sought to bring a civil suit for perjury. In striking out the claim as disclosing no cause of action Lord Goddard CJ cited the statement of Lord Mansfield in R v Skinner (1772) Lofft 55 that "neither party, witness, counsel, jury, or judge, can be put to answer, civilly or criminally, for words spoken in office". He commented:

"That is a perfectly clear statement by one of the greatest common lawyers that ever lived, that for words spoken by a witness 'in office', which means, of course, for this purpose in giving evidence, he cannot be put to answer either civilly or criminally."

In Marrinan v Vibart [1963] 1 QB 528 an attempt to circumvent the immunity by framing a claim in conspiracy to defame was roundly rejected by the Court of Appeal.

13

The typical situation where the immunity was invoked was where a witness or party had given evidence hostile to the plaintiff. A similar protection was afforded to counsel in relation to defamatory allegations made against a party, or indeed anyone else, in the course of his conduct of legal proceedings. This immunity overlapped with a wider immunity enjoyed by a barrister from a claim by his own client for failure to exercise reasonable skill and care in the conduct of litigation on behalf of the client. That immunity was unsuccessfully challenged in Rondel v Worsley [1969] 1 AC 191. In Hall v Simons [2001] 1 AC 615 the House of Lords abolished it on the ground that it could no longer be justified. The barrister is, however, still protected by absolute privilege from a claim in defamation in relation to statements made in the course of the conduct of legal proceedings – see Medcalf v Mardell [2002] UKHL 27, [2003] 1 AC 120, 142, per Lord Hobhouse.

14

I now propose to consider the authorities in greater detail. My particular objects in doing so...

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