Has the Landmark Supreme Court Decision in Jones v. Kaney Changed the Role of Expert Witnesses for the Better, for the Worse, or in Fact Not at All?

Abstract

In 2011 the Supreme Court of the United Kingdom ruled that expert witnesses no longer enjoyed civil immunity from negligence actions. This immunity had formed part of our legal system for over four centuries and had been regarded as a fundamental principle of English law. The removal of such a highly regarded and influential principle has been met with criticism, and understandably so.As a result of Jones v. Kaney, an expert witness is now open to negligence actions from his or her client if his or her negligent evidence causes loss. The decision has sparked a range of debates within both the academic and professional communities with much speculation made as to the implications of the decision. Some have argued that it will fundamentally change the way expert witnesses operate in our legal system, for the worse rather than the better. Others have argued to the contrary and have looked on at the decision favourably, as it allows for litigants to seek a remedy where previously none were available.In an attempt to discover the effects, or likely effects, the role of the expert witness and the former doctrine of immunity were first considered. An in-depth analysis of the decision itself subsequently followed in an attempt to ascertain the reasoning for abolishing the immunity. Finally, a collection of the academic commentary was gathered and analysed and the consistently propounded concerns discussed. Further primary and secondary research was carried out involving the two key expert witness organisations, the Academy of Experts and the Expert Witness Institute, in a bid to ascertain whether the speculated implications were in fact consistent with the reality.What can be extrapolated from the research is that a lot of the initial concerns raised were relatively unfounded. The research gathered from the two expert witness organisations proved very useful in painting a clearer picture of the practical effects of the decision. This in turn allowed for the more significant implications to be pinpointed. They are: the concerns relating to Jointly Instructed Experts and issues relating to professional indemnity insurance. These are real concerns that ought to be addressed sooner rather than later.With only one year gone since the decision was made it was hardly surprising to find that not many concerns have transpired. Interpretation of the case since judgement was made has been very limited. However, a case of this nature does have the potential to have effects down the line, say in five or ten years. It is argued that litigation against experts will be an inevitability. Expert witnesses, perhaps anticipating this, have now sought methods of rebuilding their defences. Such subsequent events have created more points of query and may be possible areas of research and discussion in the future.