Expert immunity – abolition

| The Practical Lawyer |

The Supreme Court has abolished expert immunity.

Traditionally, experts have been immune from being sued in respect of any work carried out in relation to trials (which include the expert’s report, as well as anything said in a meeting between experts and/or solicitors, and whatever was said in the witness box). However, the Supreme Court has held that such immunity is no longer necessary. The argument that immunity was necessary to ensure that experts performed their duty to the court and gave an honest opinion was not sufficient. The court drew an analogy with the removal of immunity for advocates; that change in the law had not resulted in any diminution of advocates being willing to perform their duty to the court, and a witness with integrity, faced with having to change his view will do so. Moreover, these days all providers of professional services are at risk of being sued for breach of duty, and they insure against that risk.

It is worth making the point that the court went out of its way to make it clear that it will not generally be straightforward to establish negligence against an expert witness: ‘if the expert gives an independent and unbiased opinion which is within the range of reasonable expert opinions, he will have discharged his duty both to the court and his client’.

In practice, there is likely to be an increasing focus on terms of engagement, with experts looking to limit or exclude liability. At the same time, one suspects that the expert who is particularly at risk is the joint expert; after all, a jointly instructed expert owes a contractual duty to both sides and it is inevitable that one side will be disappointed by the expert’s view. As always, however, the issue will boil down to the reasonableness of the advice/opinion, but this may represent an area of vulnerability for experts.

At the same time, there will be those who want to consider reviving old cases; as a parallel there were a number of cases against barristers after the abolition of their immunity, with limitation being decided on the basis that immunity for advocates ceased to exist from the date of the negligent acts in that particular case. If this latest Supreme Court decision is interpreted in the same way, immunity for experts will have ceased to exist with effect from November 2005 (when the expert negligently signed the joint statement in the case that ended up in the Supreme Court). So, those litigants who were unhappy about the behaviour and performance of an expert witness, and who previously thought there was no possibility of being able to successfully sue, may now want to reconsider whether proceedings should be commenced. See Jones v Kaney [2011] UKSC 13. Source: Charles Russell; Mills & Reeve.