Overview

Jones v Kaney [2010] EWHC 61 (QB) is the case that is on appeal from the English High Court. Justice Blake of the English High Court summarily struck out a negligence claim against an expert witness on the basis that he was bound by the leading English case on point, Stanton v Callaghan (Stanton). Stanton upheld the absolute immunity from suit conferred on witnesses (including experts) with respect to testimony in court or work otherwise intimately related to court proceedings.

Since the Court of Appeal would also be bound by Stanton, Blake J granted the claimant, Mr Jones, a 'leapfrog' certificate for the Supreme Court to decide whether or not to allow an appeal, under s.12(1) of the Administration of Justice Act. The Supreme Court has granted permission, and the appeal will be heard on 11 and 12 January 2011.

Although it seems likely that the ordinary 'witness immunity' will be left unaltered, it is not inconceivable that expert immunity could be removed, particularly in view of:

• Attacks on the public policy underpinning the doctrine of expert immunity;
• The fact that these days many experts derive income or indeed make a full-time career acting as an expert witness; and
• The judgment of Lord Hoffman in Arthur JS Hall & Co v Simons (Hall v Simons) which overruled the long standing principle that advocates, whether solicitors or barristers, were immune from suit for things done or omitted in the course of conducting a case in court.

It remains to be seen whether the Supreme Court will take the opportunity on this appeal to revisit the case law and the public policy considerations behind the immunity. Herbert Smith discusses the background of the case and the ramifications for experts if immunity is removed

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