3.3.2 Civil liability and immunity

The law approaches civil liability somewhat differently from criminal liability. Historically, many things said or written by witnesses in court were treated as attracting immunity in civil proceedings. In other words, witnesses could not be held liable to pay compensation as a result of what they had said in court. Kelly CB, in Dawkins v Lord Rokeby,^{Footnote 14} stated:

This was justified by three reasons:

• Encouraging free speech by removing the fear of being sued (see Taylor v SFO^{Footnote 15}).
• Avoiding repeated litigation on the same issue (see Darker v CC W Midland Police^{Footnote 16}).
• Encouraging witnesses to give evidence (see Hall v Simons^{Footnote 17}).

But more recently, the courts have begun to chip away at the extent of civil immunity. The most drastic change came with the case of Jones v Kaney^{Footnote 18} where the Supreme Court swept away the immunity for expert witnesses in proceedings for breach of contract or negligence. Jones was a victim of a road traffic accident which he claimed had led to post-traumatic stress disorder (PTSD). Kaney was his expert clinical psychologist. However, during the ‘hot-tubbing’ discussions with the defendant’s expert, Kaney agreed that Jones did not have PTSD and that he was deceptive and deceitful. Predictably, this seriously damaged Jones’s case and he settled for a small amount. Jones then sued Kaney in a civil court.

By a majority, the Supreme Court ruled that experts could be sued for negligence and breach of contract. The majority considered:

• Lack of immunity was unlikely to discourage experts from appearing as witnesses.
• Lack of immunity was unlikely to discourage experts from giving evidence contrary to the interests of their clients. The court took the view that experts were under a duty to give honest evidence within their expertise, even if this was contrary to their client’s case, and that an expert’s terms of engagement ordinarily required this. As such, experts’ duties were similar to those of advocates who no longer enjoyed immunity either (after Hall v Simons^{Footnote 19}) and this had not proved problematic.
• While the possibility of multiple proceedings was a risk, it was not a large one.
• Abolition would provide a wronged client with a remedy.
• Abolition would ‘sharpen awareness of the risks of pitching their initial views of their client’s case too high or too inflexibly’.^{Footnote 20}

The minority, by contrast, felt that the court was not the right body to weigh up the policy arguments and reform the law in such a way and would have preferred to leave the issue to the Law Commission and Parliament.

In the next activity, you will be given an opportunity to reflect on this area of the law.