The Supreme Court's decision in Jones v Kaney [2011] fundamentally changed the legal position of expert witnesses in England and Wales. This guide explains what immunity was abolished, what protection remains, and the practical implications for experts and the solicitors who instruct them.
For over a century, expert witnesses in England and Wales enjoyed a broad immunity from civil liability for the content of their reports and oral evidence. This immunity was the same as that enjoyed by lay witnesses and was justified on public policy grounds: courts needed experts to give their honest opinion without fear of being sued if that opinion turned out to be wrong, or if it was adverse to the party who had instructed them.
The immunity extended to the preparation of expert reports, oral evidence given in court, and — following the Court of Appeal's decision in Stanton v Callaghan [2000] — the preparation of joint statements agreed with the opposing expert. An expert who gave negligent evidence, or who agreed a joint statement that was adverse to their client without proper justification, could not be sued by the instructing party.
The rationale for this broad immunity was challenged over time. Critics argued that it placed experts in a uniquely privileged position compared to other professional advisers — solicitors, barristers, and other professionals could all be sued for negligent advice, but experts could not. The Supreme Court in Jones v Kaney accepted this argument and abolished the immunity.
The facts
Mr Jones was injured in a road traffic accident and instructed Dr Kaney, a clinical psychologist, as his expert witness in the personal injury proceedings. Dr Kaney agreed a joint statement with the opposing expert that was significantly adverse to Mr Jones's case — conceding, among other things, that he was a malingerer. Mr Jones alleged that Dr Kaney had agreed the joint statement without proper instructions and that her evidence had caused him to settle his claim for substantially less than it was worth. He sued her for professional negligence.
The Supreme Court held, by a majority of 5–2, that the immunity from civil suit previously enjoyed by expert witnesses was no longer justified and should be abolished. The majority reasoned that the public policy justifications for the immunity — ensuring that experts gave honest opinions without fear of liability — could be achieved by other means, including the expert's duty to the court and the professional obligations of expert witnesses.
The dissenting justices (Lords Hope and Dyson) argued that abolishing the immunity would have a chilling effect on expert witnesses, who might become more cautious in their opinions for fear of being sued, and that the immunity served an important function in ensuring the independence of expert evidence.
What the decision abolished
What the decision did not change
Immunity and privilege are distinct concepts that are often confused. Immunity protects an expert from being sued. Privilege protects confidential communications from disclosure in legal proceedings. The abolition of immunity in Jones v Kaney did not affect privilege.
Litigation privilege
Protects confidential communications between a party, their legal advisers, and third parties (including experts) made for the dominant purpose of litigation that is reasonably anticipated or already commenced. A draft expert report, the expert's instructions, and communications between the expert and the instructing solicitor are all protected by litigation privilege — they do not have to be disclosed to the opposing party.
Legal professional privilege
Protects confidential communications between a solicitor and their client made for the purpose of giving or receiving legal advice. This is a separate category from litigation privilege and is not affected by the involvement of an expert.
Without prejudice privilege
Protects communications made in a genuine attempt to settle a dispute. This privilege applies to settlement negotiations between the parties and is not directly relevant to expert evidence, though it may affect the admissibility of expert opinions expressed in settlement discussions.
When privilege is lost
Once an expert report is served on the other parties as part of the proceedings, it loses its privileged status. The expert's instructions and working papers may retain privilege, but the final report does not. If a party decides not to rely on an expert's report — for example, because the opinion is unfavourable — they may be able to maintain privilege over it, but they cannot then instruct a different expert on the same issue without the court's permission.
The abolition of immunity in Jones v Kaney has practical implications for both expert witnesses and the solicitors who instruct them. The most important practical consequences are:
For expert witnesses
Professional indemnity insurance is now essential — an expert without adequate cover is exposed to personal liability
The standard of care is objective: what would a reasonably competent expert in the same field have done?
Agreeing a joint statement without proper instructions, or without a genuine change of opinion, carries real liability risk
Experts should keep clear records of their instructions, methodology, and the basis for any change of opinion
Regulatory liability (GMC, BPS, etc.) is separate from civil liability and remains unaffected by Jones v Kaney
For instructing solicitors
Instructions to the expert should be clear, specific, and in writing — ambiguous instructions increase the risk of a negligence claim
The expert should not be pressured to change their opinion or to agree a joint statement that is not supported by the evidence
Any change of opinion by the expert should be documented and explained in writing
Solicitors should ensure that experts have adequate professional indemnity insurance before instructing them
The solicitor's own duty of care to the client includes selecting a suitably qualified and insured expert
Jones v Kaney [2011] UKSC 13
LandmarkSupreme Court
Abolished expert witness immunity from civil liability in England and Wales. An expert can now be sued in negligence by the party who instructed them. The case involved a clinical psychologist who agreed a joint statement adverse to her client without proper instructions.
Stanton v Callaghan [2000] QB 75
Pre-Jones v KaneyCourt of Appeal
Before Jones v Kaney, this case confirmed the scope of expert witness immunity, holding that it extended to the preparation of a joint statement as well as to oral evidence. This protection was subsequently abolished by the Supreme Court.
Meadow v General Medical Council [2006] EWCA Civ 1390
Regulatory liabilityCourt of Appeal
Confirmed that expert witnesses are not immune from regulatory proceedings by their professional body as a result of evidence given in court. Professor Meadow's GMC fitness to practise proceedings were allowed to proceed despite his evidence having been given in criminal proceedings.
Phillips v Symes [2004] EWHC 2330 (Ch)
Wasted costsHigh Court
Established that a court has jurisdiction to make a wasted costs order against an expert witness who has acted in flagrant disregard of their duty to the court. This is a separate form of liability from negligence and remains available after Jones v Kaney.
Re W (Care Proceedings: Expert Evidence) [2014] EWCA Civ 1118
Family proceedingsCourt of Appeal
Addressed the duties of experts in family proceedings and the consequences of failing to comply with those duties. Confirmed that an expert who misleads the court may face serious professional consequences, including referral to their regulatory body.
All experts instructed through Expert Witness UK hold professional indemnity insurance and are experienced in preparing court-compliant reports.
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