On 30 March 2011, the Supreme Court gave its judgment in Jones –v- Kaney[2011] UKSC 13, the case which saw an end to the expert witness’s immunity from suit in negligence. This reversed a line of authority dating back 400 years, and commentators have called it a landmark ruling, a historic decision, a major victory for claimant lawyers, the end of the amateur expert, and the professionalising of the expert witness industry. How valid are these comments?
Let us consider what has changed over the last nine months.
First, the facts.
Paul Jones was a motorcyclist, injured in an RTA by one Bennett, a car driver who was drunk, uninsured and disqualified. Dr Sue Kaney, a consultant clinical psychologist for the claimant, produced a report saying that Mr Jones was suffering from PTSD. Dr El-Assra was appointed by the defence, and he disagreed. There was an experts’ discussion by telephone, and Dr El-Assra drafted a joint statement and sent it to Dr Kaney for her agreement. It stated that Dr Kaney had changed her opinion; that Mr Jones had suffered only from an adjustment reaction, not PTSD, and that Mr Jones had been “very deceptive and deceitful in his reporting”. Unsurprisingly, this was hugely damaging to the claim, and Mr Jones felt obliged to settle for damages much lower than he thought were his due.
It emerged that the joint statement did not reflect Dr Kaney’s views at all; she had felt under pressure to sign the joint statement, and had done so without even reading it!
Mr Jones sued Dr Kaney for negligence, and lost at first instance because the Court of Appeal in 1998 had said in Stanton –v- Callaghan that experts could not be sued for negligence in preparing joint statements. So the claimant was allowed to leapfrog his appeal directly to the Supreme Court, which found 5:2 that the expert could be sued; so now expert witnesses can be sued for negligence in the evidence they give (an expert’s evidence includes their report and their joint statement, as well as any oral evidence given at the hearing) which is quite different from the immunity given to witnesses of fact.
Space does not allow discussion of the reasons for the majority decision, or the interesting views of Lord Hope and Lady Hale who dissented; we must turn to what difference this has made to the expert witness “industry”.
I suppose serious experts such as the writer could complain about Dr Kaney letting the side down; after all, it was naïve to sign a joint statement without reading it, whereas the joint “meeting” of experts and of the joint statement form an important part of the expert’s evidence.
But I have no sympathy with that; it is basic law that there should be no wrong without a remedy, and if an expert has failed in their duty of care to their client (as well, in this case, as expressing to the Court an opinion which she does not even hold) then they should be held responsible.
There is ongoing debate about whether experts should be amateur or professional; and that depends in my view on how fast-moving is the area of expertise needed. In some fields such as highly specialised areas of medicine a clinical practitioner may be essential; in others, such as my field of accountancy, it is acceptable for full-time experts to keep abreast of developments through regular training. Of course an expert must not take on a case unless they do have detailed and current knowledge, and that must be kept under constant review; only last week I turned down an assignment which required specialised knowledge which I could not profess. But this is rare.
The point to appreciate by experts, and by those choosing to appoint them, is that they must in effect be members of two professions: they must of course have qualifications and experience in their own field, but they must also know enough about being an expert to carry out those functions effectively. This must include knowledge of the CPR or equivalent; of how to write an expert report and what it must contain; of how not to stray outside one’s own field of expertise, of how to conduct a “meeting” of experts, of how to give evidence at a hearing, and so on.
This is something which I recognised, early in my career as an expert accountant. I had taken the trouble to be properly trained at The Academy of Experts (where I am now a fellow), yet I regularly met at trial accountants who thought it was “sexy” to act as an expert, who thought it a useful way of filling in between their audit assignments, but who didn’t have a clue about their duties to the court as an expert. These “wannabees” were doing the legal process no good at all, let alone the damage they were doing to my profession.
So when I first joined the committee of the Forensic Special Interest Group at the ICAEW, we developed a carrot and stick approach against such enthusiastic amateurs. The stick was that a chartered accountant who took on a case they were not competent to perform would be disciplined by the ICAEW. The carrot was that those who could demonstrate a very high standard of expertise in expert witness work, as well as being competent chartered accountants, would have the kudos of being recognised as a leader in their field, and gain more appointments.
And so it has come to pass. It took seven years to perfect, but the ICAEW accreditation scheme was launched in late 2010, and the handful who have demonstrated the very high standard required may be found at www.icaew.com/forensicaccreditation/register. These are the members of the two professions necessary to perform expert witness assignments.
In my view, Jones –v- Kaney has changed little. It merely emphasises the importance of choosing horses for courses. An expert who takes on more than he should and makes a mess of it may be sued, and quite right too. But in choosing your experts, if you go for someone who bears the kitemark of their professional body as being an expertexpert witness, you will be in safe hands, and your clients will receive the high standard of service they deserve.
Biog: Chris Makin is one of only 30 or so chartered accountants to become an Accredited Forensic Accountant and Expert Witness – www.icaew.com/forensicaccreditation/register. He is also an accredited civil & commercial mediator and an accredited expert determiner. He has given expert evidence at least 70 times and worked on a vast range of cases over the last 23 years. For CV, war stories and much more, go to www.chrismakin.co.uk.