Jones v Kaney [2011] UKSC 13 is a 2011 decision of the Supreme Court of the United Kingdom on whether expert witnesses retained by a party in litigation can be sued for professional negligence in England and Wales, or whether they have the benefit of immunity from suit.

To succeed in the claim, he had to overturn an earlier Court of Appeal decision that had decided that preparation of a joint statement with the other side's expert was covered by immunity from suit.

The Supreme Court, by a majority of five to two, decided that expert witnesses were not immune in the law of England and Wales from claims in tort or contract for matters connected with their participation in legal proceedings.

There was discussion about whether removing the immunity would have a "chilling effect" on the willingness of experts to participate in court proceedings, although judges on both sides of the decision agreed that there was no empirical evidence on the point.

Lord Phillips, a member of the majority, compared the situation of expert witnesses with that of advocates, on the basis that both owed duties to clients and to the court.

[2] Other commentators were concerned that the decision would lead to reduction in the number of expert witnesses prepared to become involved with some particularly sensitive areas, such as child abuse cases.

However, the view taken by the psychiatrist instructed by the insurers defending the claim was that Jones was exaggerating the effects of his physical injuries, either consciously or unconsciously.

The joint statement signed by both experts after the discussion showed that Kaney had conceded ground on a number of issues, weakening the claim considerably.

The decision to allow Jones's appeal against the strike-out order was reached by a majority of five to two, with Lord Hope and Lady Hale dissenting.

[25] Removing their immunity, he said, had not led to any diminution in advocates performing their duty to the court, and it would be "mere conjecture" to assume that this would be any different for expert witnesses.

He said that "the gains to be derived from denying [expert witnesses] immunity from suit for breach of that duty substantially exceed whatever loss might be thought likely to result from this", since a potential liability would lead to a "sharpened awareness of the risks of pitching their initial views of the merits of their client’s case too high or too inflexibly lest these views come to expose and embarrass them at a later date.

[29] It would also ensure that a client who was caused loss by an expert witness acting in "an egregious manner" would receive a proper remedy; he said that such cases were likely to be "highly exceptional".

[30] Lord Collins, agreeing, noted that the result did not affect the position of the expert vis-a-vis the opposing litigant, where there were "wider considerations of policy" against allowing claims.

"[45] In family law cases, she said, there would now be some professional witnesses who had immunity from negligence claims for their evidence and others who did not, with some of the distinctions between the two groups appearing to be "arbitrary".

[3] The Supreme Court's conclusions were described by newspapers and legal magazines as "a landmark ruling",[1] an "historic decision",[48] and as a "major victory" for the lawyers acting for the claimant.

[52] A solicitor working in the field of professional negligence claims, Ian McConkey, said to insurance magazine Post Online that the result had been "widely expected".

[53] Another lawyer was quoted by the Law Society Gazette as saying the decision was long overdue, but unlikely to lead to experts becoming reluctant to take on claims, since they could limit their liability in their terms of engagement.

[1] The barrister Clare Montgomery QC of Matrix Chambers considered the wider implications of the decision, wondering whether it might lead to claims against other participants in the legal process being allowed.

[2] Penny Cooper, a professor at the City Law School in London, was concerned about a "lack of clarity" in the decision about who else apart from experts could be sued as a result, and commented that the witness box had now become "an even more scary place to be".

[52] Some lawyers were concerned about the impact of the ruling on the willingness of experts to act, particularly in court cases involving allegations of child abuse.

[52] Peter Garsden, a solicitor who is president of the Association of Child Abuse Lawyers, called the decision "horrifying", adding that he already found it difficult to find expert witnesses and the "fear of litigation" could have "a drastic effect" on his firm's work.