UKSC 13
On appeal from:  EWHC 61 (QB)
Jones (Appellant) v Kaney (Respondent)
Lord Phillips, President
Lord Hope, Deputy President
JUDGMENT GIVEN ON
30 March 2011
Heard on 11 and 12 January 2011
Roger Ter Haar QC
(Instructed by Hill Dickinson LLP)
Patrick Lawrence QC
(Instructed by Berrymans Lace Mawer LLP)
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. "
The current state of the law
"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."
"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  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.
The reasons for the immunity
"if actions should be permitted in such cases, those who have just cause for complaint, would not dare to complain for fear of infinite vexation."
The continuous theme that runs through the cases is, in modern parlance, the chilling effect that the risk of claims arising out of conduct in relation to legal proceedings would have. It would make claimants reluctant to resort to litigation. It would make witnesses reluctant to testify. If they did testify, it would make them reluctant to do so freely and frankly. The cases emphasise that the object of the immunity is not to protect those whose conduct is open to criticism, but those who would be subject to unjustified and vexatious claims by disgruntled litigants.
i) To protect witnesses who have given evidence in good faith from being harassed and vexed by unjustified claims: per Lord Hope of Craighead at p 446 and Lord Hutton at p 464;
ii) To encourage honest and well meaning persons to assist justice; in the interest of establishing the truth and to secure that justice may be done: per Lord Hope at p 447 and Lord Clyde at p 460;
iii) To secure that the witness will speak freely and fearlessly: per Lord Clyde at p 461.
The extension of the immunity to expert witnesses
"I do not care whether he is what is called a volunteer or not; if he is a person engaged in the administration of justice, on whichever side he is called his duty is to tell the truth and the whole truth. If he tells the truth and the whole truth, it matters not on whose behalf he is called as a witness; in respect of what he swears as a witness he is protected that cannot be denied and when he is being examined for the purpose of being a witness he is bound to tell the whole truth according to his views, otherwise the precognition, the examination to ascertain what he will prove in the witness box, would be worth nothing."
This decision lends some support for extending witness immunity to experts, but it is right to observe that the focus of the House of Lords appears to have been the claim for slander and the case was not concerned with the duty of care that, under the modern law, is owed by an expert to his client, as to which see para 49 below.
"(i) an expert witness who gives evidence at a trial is immune from suit in respect of anything which he says in court, and that immunity will extend to the contents of the report which he adopts as, or incorporates in, his evidence; (ii) where an expert witness gives evidence at a trial the immunity which he would enjoy in respect of that evidence is not to be circumvented by a suit based on the report itself; and (iii) the immunity does not extend to protect an expert who has been retained to advise as to the merits of a party's claim in litigation from a suit by the party by whom he has been retained in respect of that advice, notwithstanding that it was in contemplation at the time when the advice was given that the expert would be a witness at the trial if that litigation were to proceed. What, as it seems to me, has not been decided by any authority binding in this court is whether an expert is immune from suit by the party who has retained him in respect of the contents of a report which he prepares for the purpose of exchange prior to trial say, to comply with directions given under RSC, Ord 38, r 37 - in circumstances where he does not, in the event, give evidence at the trial; either because the trial does not take place or because he is not called as a witness."
"In my view, the public interest in facilitating full and frank discussion between experts before trial does require that each should be free to make proper concessions without fear that any departure from advice previously given to the party who has retained him will be seen as evidence of negligence. That, as it seems to me, is an area in which public policy justifies immunity. The immunity is needed in order to avoid the tension between a desire to assist the court and fear of the consequences of a departure from previous advice."
"On any basis the defendant when attending the meeting with his opposite number enjoyed the immunity. It is true that he did not do so pursuant to RSC, Ord 38, r 38 but the purpose of the meeting was to identify those parts of the evidence and the other's opinion which they could agree and those which they could not. It was in the public interest to do so. The duty to the court must override the fear of suit arising out of a departure from a previously held position. The expert must be able to resile fearlessly and with dignity. In the instant case both experts resiled from more extreme positions. In theory, at least, the defendants could have sued their expert for placing them in a more adverse position."
The position of barristers
"as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what the client thinks are his personal interests ." per Lord Reid at p 227.
This rendered counsel particularly susceptible to vexatious suits and immunity was necessary to protect against this. Without this immunity there would be a pressure on the advocate to subordinate his duty to the court to his duty to the client. This would lead him into undesirable prolixity per Lord Reid at p 229, Lord Morris of Borth-y-Gest at p 251, Lord Pearce at pp 256 and 272, and Lord Upjohn at p 284.
"the protection exists only where the particular work is so intimately connected with the conduct of the cause in court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing."
"Mr Scott invited your Lordships to apply by analogy the decision of the Court of Appeal in Stanton v Callaghan  QB 75, in which it was held that an expert witness could not be sued for agreeing to a joint experts' statement in terms which the client thought detrimental to his interests. He said that this was an example of a general immunity for acts done in the course of litigation. But that seems to me to fall squarely within the traditional witness immunity. The alleged cause of action was a statement of the evidence which the witness proposed to give to the court. A witness owes no duty of care to anyone in respect of the evidence he gives to the court. His only duty is to tell the truth. There seems to me no analogy with the position of a lawyer who owes a duty of care to his client.
Nor is there in my opinion any analogy with the position of the judge. The judge owes no duty of care to either of the parties. He has only a public duty to administer justice in accordance with his oath. The fact that the advocate is the only person involved in the trial process who is liable to be sued for negligence is because he is the only person who has undertaken a duty of care to his client."
i) What are the purposes of the immunity?
ii) What is the scope of the immunity?
iii) Has the immunity been eroded?
iv) What are the effects of the immunity?
v) Can expert witnesses be compared to advocates?
vi) Is the immunity justified?
vii) Should the immunity be abolished?
What are the purposes of the immunity?
What is the scope of the immunity?
Has the immunity been eroded?
What are the effects of the immunity?
Can expert witnesses be compared to advocates?
"the earlier pragmatic flexibility is brought under a sharp curb, whether of conscience, or fear of perjury, or fear of losing professional credibility. It is no longer enough for the expert like the 'virtuous youth' in the Mikado to 'tell the truth whenever he finds it pays': shades of moral and other constraints begin to close up on him."
Is the immunity justified?
"since the immunity may cut across the rights of others to a legal remedy and so runs counter to the policy that no wrong should be without a remedy, it should be only allowed with reluctance, and should not readily be extended. It should only be allowed where it is necessary to do so."
With this principle in mind, I would adopt the approach advocated by Lord Reid in Rondel v Worsley at p 228, when considering the immunity from suit enjoyed by advocates:
"the issue appears to me to be whether the abolition of the rule would probably be attended by such disadvantage to the public interest as to make its retention clearly justifiable."
It would not be right to start with a presumption that because the immunity exists it should be maintained unless it is shown to be unjustified. The onus lies fairly and squarely on the respondent to justify the immunity behind which she seeks to shelter. I turn to consider whether she can do so. I shall consider the various justifications advanced for the immunity that I have identified earlier in this judgment.
Reluctance to testify
"Here most of the required experts are either medically qualified or otherwise qualified in the mental health professions. The majority will be employed under NHS consultant contracts. By contrast to the other justice systems this is a market in which demand exceeds supply. It is thus very sensitive to increasing or newly emerging disincentives. This factor is compounded by a paucity of incentives. The fee for the work will often be paid to the trust employer. The employer may be reluctant to release the consultant from other duties. Keeping up with the demands of the court's timetable may involve evening or weekend work."
Is immunity necessary to ensure that expert witnesses give full and frank evidence to the court?
Will the diligent expert witness be harassed by vexatious claims for breach of duty?
Will there be a risk of a multiplicity of suits?
Should the immunity be abolished?
"is designed to encourage freedom of speech and communication in judicial proceedings by relieving persons who take part in the judicial process from the fear of being sued for something they say."
That aside, witnesses of fact are unlikely to owe the party calling them any duty of care whether in contract or in tort.
" the immunity would only extend to what could fairly be said to be preliminary to his giving evidence in court judged perhaps by the principal purpose for which the work was done. So the production or approval of a report for the purposes of disclosure to the other side would be immune but work done for the principal purpose of advising the client would not."
" the only ground of public policy that can be relied upon as a foundation for immunity in respect of the contents of an expert's report, in circumstances where no trial takes place and the expert does not give evidence, is that identified by Lord Morris of Borth-y-Gest in Rondel v Worsley  1 AC 191, 251G and referred to by Lord Diplock in Saif Ali v Sydney Mitchell & Co  AC 198, 222B:
'It has always been the policy of the law to ensure that trials are conducted without avoidable strains and tensions of alarm and fear.'"
The duty owed by an expert witness
"Mr Callaghan was a professional man who undertook, for reward, to provide advice within his expertise. The expectation of those who engaged him must have been that he would exercise the care and attention appropriate to what he was engaged to do. I would find it difficult to accept that Mr Callaghan did not share that expectation."
"Experts always owe a duty to exercise reasonable skill and care to those instructing them, and to comply with any relevant professional code of ethics. However when they are instructed to give or prepare evidence for the purpose of civil proceedings in England and Wales they have an overriding duty to help the court on matters within their expertise (CPR 35.3). This duty overrides any obligation to the person instructing or paying them."
This Protocol was drafted by the Civil Justice Council with the assistance of work done by the Expert Witness Institute and the Academy of Experts. It was cited with approval by Sir Anthony Clarke MR in Meadow v General Medical Council  QB 462, para 22.
The present state of the law
"Each case would depend upon its own facts with the court concerned to protect the expert from liability for the evidence which he gave in court and the work principally and proximately leading thereto. I do not think that difficulty in drawing the line precisely should result in a plaintiff in a case such as this being denied all remedy against his expert."
The correct starting point
Is the immunity justified?
"To assess the likelihood [of the removal of the immunity having a significant adverse effect], I think that one should start by considering the incentives which advocates presently have to comply with their duty and those which might tempt them to ignore it. The first consideration is that most advocates are honest conscientious people who need no other incentive to comply with the ethics of their profession. Then there is the wish to enjoy a good reputation among one's peers and the judiciary. There can be few professions which operate in so bright a glare of publicity as that of the advocate. Everything is done in public before a discerning audience. Serious lapses seldom pass unnoticed. And in the background lie the disciplinary powers of the judges and the professional bodies .
Looking at the other side of the coin, what pressures might induce the advocate to disregard his duty to the court in favour of pleasing the client? Perhaps the wish not to cause dissatisfaction which might make the client reluctant to pay. Or the wish to obtain more instructions from the same client. But among these pressures, I would not put high on the list the prospect of an action for negligence. It cannot possibly be negligent to act in accordance with one's duty to the court and it is hard to imagine anyone who would plead such conduct as a cause of action."
Should the immunity of expert witnesses survive for any purpose?
"no action lies against parties or witnesses for anything said or done, although falsely and maliciously and without any reasonable or probable cause, in the ordinary course of any proceeding in a court of justice."
That this principle had long been recognised in English law can be seen from Lord Mansfield's statement 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."
As Lord President Inglis observed in Williamson v Umphray and Robertson (1890) 17 R 905, 910-911 where the claim was one of libel, the rule that gives that privilege to judges, jurors, counsel and witnesses is founded on obvious grounds of public policy:
"It is essential to the ends of justice that persons in such positions should enjoy freedom of speech without fear of consequences, in discharging their public duties in the course of a judicial inquiry. But the motive of the law is not to protect corrupt or malevolent judges, malicious advocates, or malignant and lying witnesses, but to prevent persons acting honestly in discharging a public function from being harassed afterwards by actions imputing to them dishonesty and malice, and seeking to make them liable in damages."
"If by any process of demonstration, free from the defects of human judgment, the untruth and malice could be set above and beyond all question or doubt, there might be ground for contending that the law of the land should give damages to the injured man. But this is not the state of things under which this question of law has to be determined. Whether the statements were, in fact, untrue, and whether they were dictated by malice, are, and always will be, open questions, upon which opinions may differ, and which can only be resolved by the exercise of human judgment. And the real question is, whether it is proper on grounds of public policy to remit such questions to the judgment of a jury. The reasons against doing so are simple and obvious. A witness may be utterly free from malice, and may yet in the eyes of a jury be open to that imputation; or, again, the witness may be cleared by the jury of the imputation, and may yet have to encounter the expenses and distress of a harassing litigation. With such possibilities hanging over his head, a witness cannot be expected to speak with that free and open mind which the administration of justice demands."
"Now, if that were once permitted the protection of absolute privilege would disappear; and therefore the only sound rule is to grant that protection unless it can be demonstrated that is, shewn so clearly that no man of ordinary intelligence and judgment could honestly dispute it that the words used had no connection with the case in hand. The result of this, no doubt, is that in an exceptional case like that which we have before us, of a judge who is unable to restrain himself, hardship is inflicted on the person to whom the remarks are addressed. But on the other hand it is to be remembered that, thanks to the protection afforded by the privilege, ninety-nine out of a hundred judges are enabled to discharge their duties without fear or favour and without the dread of an impending action."
"It may be that to some extent it seems to impose a hardship, but after all the hardship is not to be compared with that which would arise if it were impossible to administer justice, because people would be afraid to give their testimony."
"The broad proposition I entertain no doubt about, and it seems to me to be the only question that properly arises here; as to the immunity of a witness for evidence given in a Court of Justice, it is too late to argue that as if it were doubtful."
I think that this passage makes it clear that, in his opinion, there were no grounds for distinguishing between the claims that were being made in the action. The immunity extended as much to a claim of damages for breach of a duty of confidence as it did to a claim for slander, or indeed any other claim. The question whether an expert witness was in a different position from an ordinary witness had been raised and dealt with in the Inner House.
"Whatever form of action is sought to be derived from what was said or done in the course of judicial proceedings must suffer the same fate of being barred by the rule which protects witnesses in their evidence before the court and in the preparation of the evidence which is to be so given." [Emphasis added]
Salmon J said of the immunity in the same case at first instance, at  1 QB 234, 237:
"This immunity exists for the benefit of the public, since the administration of justice would be greatly impeded if witnesses were to be in fear that any disgruntled and possibly impecunious persons against whom they gave evidence might subsequently involve them in costly litigation."
"If this object is to be achieved, the person in question must know at the time he speaks whether or not the immunity will attach. If it depends upon the contingencies of whether he will be called as a witness, the value of the immunity is destroyed."
It is the need for certainty that also makes it necessary to extend the protection of the rule to all witnesses and to all causes of action that may be brought against them. The rough is taken with the smooth. There will be some cases where a genuine cause of action is excluded by it. But in the vast majority of cases it is the assurance of the protection that enables people against whom no action could reasonably be brought to speak freely without facing the prospect of being harassed by those against whose interests they have spoken. It is an important part of the protection that, as Sellers LJ said in Marrinan v Vibart  1 QB 528, 535, it extends to whatever form of action is sought to be derived from what was said or done in the proceedings. That had been settled law since the decision of the House of Lords in Watson v M'Ewan  AC 480, where it was held that the witness was protected by the immunity against a claim for breach of confidence: see para 141, above.
"that seems to me to fall squarely within the traditional witness immunity. The alleged cause of action was a statement of the evidence which the witness proposed to give to the court. A witness owes no duty of care to anyone in respect of the evidence he gives to the court. His only duty is to tell the truth."
The expert witness
"(1) It is the duty of experts to help the court on matters within their expertise.
(2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid."
In National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer)  2 Lloyd's Rep 68, 81 Cresswell J said, of the duties and responsibilities of experts in relation to the party and to the court, that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to the form or content by the exigencies of litigation, and that an expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. He referred, in support of these propositions, to Lord Wilberforce's observations in Whitehouse v Jordan  1 WLR 246, 256 and those of Garland J in Pollivitte Ltd v Commercial Union Assurance Company Plc  I Lloyd's Rep 379, 386 and Cazalet J in In re J (Child Abuse: Expert Evidence)  FCR 193.
"But we have recognised, again and again, that in some situations, the alternative of limiting the official's immunity would disserve the broader public interest."
There would seem then, as a starting point, to be a strong case for treating an expert in the same way as any other witness when it comes to the giving of sworn evidence in court. If that is so, the case would seem to be just as strong for treating him in the same way when, on the directions of the court, he is agreeing a joint statement with the opposing expert and for treating him in the same way when he is preparing his own report with a view to giving his evidence. Lord Phillips does not see why an expert should be concerned that performance of his duty to the court will result in his being sued for breach of duty to his client: para 56. But this assumption contradicts the justification for the immunity that is extended to witnesses generally, which is that there are grounds from time to time for believing that the fear of suit exists. If he is right, there are seeds here for challenging the whole concept of witness immunity.
Pros and cons
"Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.
Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so."
In Austin v Southwark London Borough Council  UKSC 28,  3 WLR 144, at para 25, Lord Hope (with whom all other members of the court agreed) stated that this "has as much effect in this court as it did before". However, this case illustrates how hard it is to apply that wise guidance in practice.
"The actions which the police take as law enforcers or as investigators may, of course, become the subject of evidence. . . . But there is no good reason on grounds of public policy to extend the immunity which attaches to things said or done by [police officers] when they are describing these matters to things done by them which cannot fairly be said to form part of their participation in the judicial process as witnesses. The purpose of the immunity is to protect witnesses against claims made against them for something said or done in the course of giving or preparing to give evidence. It is not to be used to shield the police from action for things done while they are acting as law enforcers or investigators."
Lord Phillips went on to say that it may not be easy to draw the line between investigation and preparation of evidence in cases of suspected child abuse but the Court clearly held that that was where the line should be drawn. To that extent, therefore, the view taken in X v Bedfordshire has been superseded by later authority. There was no appeal to the House of Lords against that aspect of the decision of the Court of Appeal in D v East Berkshire NHS Trust. There may, therefore, be a relatively clear dividing line between conducting the examinations and investigations, on the one hand, and preparing for and giving evidence, on the other.