In Jones v Kaney Mr Jones sued the consultant clinical psychologist Dr Sue Kaney on the grounds of professional negligence. Dr Kaney was instructed by Mr Wynne Jones’ solicitors to provide expert evidence in relation to his claim for damages arising out of a road traffic accident.

Dr Kaney had provided a helpful report, but after discussions with the opposing expert to narrow the issues she unfortunately signed a joint statement which appeared to concede that the claimant was not entirely genuine. She claimed that the joint statement did not actually reflect what had been discussed on the telephone but she had felt under pressure to sign the document. She agreed that the statement therefore did not represent her real views and said that she would be happy for it to be amended. The claimant's solicitors applied to the District Judge for leave to instruct a fresh expert but he refused the application. There seems to be no indication that any application was made to have another discussion between experts to draw up a fresh joint statement, which might have been the best way forward. Having tried without success to appoint a new expert, the claimant's solicitors settled for a sum which was less than they might otherwise have won, and a claim for negligence was then pursued against Dr Kaney.

A panel of seven judges in the Supreme Court has decided by a majority of 5 to 2 (Lord Hope and Lady Hale dissenting) that there is no justification for upholding expert witness immunity, now that solicitors and counsel are no longer immune from actions for negligence. The implications are far-reaching. Lord Phillips has said that he thinks it unlikely that there will be many claims against experts. In his words, the practical reality is that, if the removal of immunity would have any effect at all on the process of preparation and presentation of expert evidence (which is not in any event likely), it would tend to ensure a greater degree of care in the preparation of the initial report or the joint report. It is almost certain to be one of those reports, rather than evidence in the witness box, which will be the focus of any attack, since it is very hard to envisage circumstances in which performance in the witness box could be the subject of even an arguable case.

But any expert will now be mindful that if his initial report was sufficient to encourage a litigant to embark on expensive proceedings and he later changes his mind, he might then be accused of having failed to prepare his original report with sufficient care. While the courts may be reluctant to find an expert liable, there will probably be no shortage of disgruntled litigants ready to pursue negligence claims.  Experts will now have to consider whether they are adequately insured for these risks.