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If you’re instructing an expert witness you should tell them about Jones v Kaney. In Jones the UK Supreme Court reversed a first instance decision striking out a negligence claim against the defendant expert. The claimant alleged that the expert negligently prepared a joint experts’ statement for a personal injury action brought by the claimant. The Supreme Court held that the immunity from suit for breach of duty enjoyed by expert witnesses in legal proceedings should be abolished.

They held that it was on the defendant, who claimed immunity, to justify its existence and prove that it ought to be maintained. They found that rationale for the immunity was that an expert witness might yield to the client’s interest, in breach of his duty to the court if he could be sued by his client.

This rationale derived from barristers’ immunity. However, following the abolition of barristers’ immunity in Arthur J S Hall & Co v Simons [2002] 1 AC 615 no attempt had been made to address the immunity of experts. The evidence available after the removal of barrister’s’ immunity did not support any argument that, without the immunity, barristers failed to perform their duty to the court and their client or that there had been a proliferation of claims by lay clients against their counsel.

The majority concluded that no justification had been shown for continuing to hold expert witnesses immune from suit for breach of duty (whether in contract or in negligence). The case did not remove an expert’s claim to absolute privilege in defamation, nor should it be construed to remove the longstanding immunity of other witnesses.

The applicability of this decision to Hong Kong is uncertain. Arthur J S Hall has not been followed in Hong Kong, so it is unclear whether barristers have immunity in this jurisdiction. If the public policy factors in favour of retaining immunity are still seen as holding weight in Hong Kong over the rationale for abolishment then it follows that the same reasoning will carry into any review of expert immunity as was made in Jones. Arthur J S Hall was specifically mentioned by the Court of Final Appeal in HKSAR v Hung Chan Wa (2006) 9 HKCFAR 614 as an example of how the common law can develop without a prior decision being wrong, but without expressing any view on the issue raised by the decision. It has since been cited for other propositions (related to collateral attacks on the outcome of previous litigation) in Hong Kong, but not for its ‘headline’ removal of immunity.

Other summaries here and here. Some commentary from Guardian Legal and the UK Supreme Court Blog. The UK Supreme Court’s press summary here. The full text of the judgment here.

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