Friday, 1 April 2011

Jones v Kaney [2011] UKSC 13: inexpert experts

The Court has been changing its attitude to negligence in the court room itself.  For a long time the idea that a barrister could be sued for negligence was unthinkable.  A barrister merely presented the law.  If the barrister made a pig’s ear of it, that was irrelevant to the result.  The Court would get the right decision.  What’s more, it stopped re-trying cases when someone was disgruntled that they’d lost.

That has changed.  The Court some years ago in the Hall v Simons case decided that barristers could be sued for negligence.  One major pillar down.  Now the question was whether expert witnesses could be sued as well.  Expert witnesses are the only people allowed in trials, apart from the judge, to have opinions.  Lawyers state the law and their argument; witnesses state the facts.  Only a judge will need help with complex medical or engineering matters, hence expert witnesses.  Usually one (at least) per party.  With a pre-trial meeting to get them to agree, or at least to agree to disagree.  Even narrowing down the areas of disagreement would be useful for the trial.

You may think on the face of it that they should.  If someone goes to Court based on a duff report, why should the expert be immune from their duffness?  Anything that makes them do their job better would be welcome.

On the other hand, what happens if an expert changes their mind?  Report goes in, they discuss with the other side, realize they may be mistaken.  If they change their mind, are they going to be sued?  Should they keep shtum and hope it goes away?  Or should they be encouraged by immunity to co-operate with the other side and get a just resolution?  The expert owes a duty to the Court as well as to the client, after all…why should they be inhibited from this?

As a result, for four hundred years experts had been immune from being sued.  No more.  The Supreme Court, by a 5-2 margin, has swept that away.

The facts (at least, those assumed by the Court to reach its decision) of the Jones case are dispiriting.   Mr Jones was sitting on his motorbike when he was hit by a drunk driver.  He sued, the big debate was about his depression.  His expert – Dr Kaney – said it was serious; the driver’s doc said it was an adjustment period.  The two doctors had their expert meeting, and Dr Kaney pretty much agreed with everything the other doctor said.  Why?  Turned out she hadn’t done her prep.  And she felt bullied into signing a statement with which she did not agree.  Mr Jones tried to change his expert, Court said no, and he settled for a lot less than he would have done had Dr Kaney not signed off the joint report.  So, Mr Jones sued Dr Kaney, who tried to get the claim thrown out on an immunity basis.  She won at every stage – until the Supreme Court stepped in.

The judgment is quite long, but mostly goes through the dicta in the cases where immunity had been firmed up, to see the reasons behind it; Phillips LJ was pretty unconvinced that there was a consistent line of reasoning, and seemed to think that there was immunity because everyone assumed there was immunity.  And went through some of the objections to removing immunity, dismissing most of them as being baseless.  To some extent that’s correct, a proper expert will do their job properly, and changing their mind is not evidence of negligence.

The problem is that the two dissenting opinions seem to me to be more persuasive.  Lady Hale asked whether this is really a Supreme Court matter, or should the Law Commission look at it in detail, and consider positions such as insurance for professional negligence in the round, rather than in an almost ad-hoc hearing?  Both her Ladyship and Lord Hope also expressed concerns about the reactions of the losers.  Will they go straight after their experts?  The removal of advocate immunity has certainly not led to an explosion of litigation against them, perhaps because the wise legal adviser will always build in an element of doubt, but as for experts, would collapsing under fearsome cross-exam lead to them being blamed – and therefore sued – with the result the whole thing is re-tried without the opponent?

The Supreme Court considered these points and dismissed them.  Without much in the way of reasoning.  Indeed the question of whether people would give up being experts if faced with being sued was dismissed with a few comments – based on a show of hands at an expert conference and a lack of evidence on the point.  I should have thought that this would have meant there should be more investigation into the position, rather than an ex cathedra judgment, but we are where we are.  And for a negligent expert, that’s right on the hook.

The upshot for Dr Kaney?  There is no finding of negligence against her.  The exact circumstances of her advice will be gone through at a trial.  This was only a preliminary issue with her looking for a quick win.  We await to see whether she really signed a joint report because she was bullied into it – or whether she had valid misgivings.

One area that the Supreme Court was keen to emphasize was that the case only applied to a “friendly” expert.  The opponent owes no duty to you.  One wonders if this will be further eroded; if you end up with a 10 day trial rather than a quick win because the other side’s expert spun a line of rubbish to the Court, could it be argued that you have suffered a loss as a result of that expert’s breach of duty to the Court and those before it?  Wasted costs orders to be made?

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