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Expert Witness Immunity - An Expert's Perspective

Posted on 6th April 2011

The Supreme Court has recently ruled that the immunity which expert witnesses previously enjoyed has been abolished.

Richard Walmsley, an experienced quantum expert, discusses the implications from an expert’s perspective.

In 2001 advocates’ immunity was removed and now ten years later expert witness immunity has also been abolished by a majority decision in Jones v Kaney [2011] UKSC13. It seems that the majority were influenced by the fact that the expert witness is considered to be closer to an advocate than a witness of fact. This is because experts will have chosen to provide their services and voluntarily undertaken their duties for reward. Witnesses of fact are not in that position.

The Supreme Court considered that experts would not be dissuaded from acting as a result of the potential risk from professional negligence claims. How then should experts consider this development?

Experts should be fully aware of their overriding duty to assist the court and if they carry out that duty in a conscientious and professional manner, then there should be no real concerns arising from this judgement. After all, architects, quantity surveyors and engineers have been open to be sued for professional negligence when carrying out their everyday professional duties. This position has merely been extended, in my view quite rightly, to experts.

It remains to be seen whether the judgement deters some professionals from acting as experts. It may be that the 'hired gun' expert (referred to in the judgement) may be dissuaded to act and this can only be a good thing. As a result the judgement could potentially improve the calibre of experts.

Experts will need to be aware of the judgement in respect of their professional indemnity cover to ascertain if they are any implications.

Experts will also need to be aware that even if they perform their services in a thoroughly professional manner, a disappointed litigant may seek to commence worthless but nonetheless time-consuming claims against their experts. This issue seems to have been of real concern to the Supreme Court who considered the matter within the judgement but ultimately rejected it as of no real consequence.

There are, however, some further issues regarding expert witness immunity:-

  • What about the joint or court appointed expert?
  • What about the witness of fact who, although not formally appointed as an expert, has nonetheless given quasi expert evidence because they were regarded by the court as being experienced and professional practitioners?
  • It remains to be seen whether there will be, over a period of time, a further erosion of immunity to other ‘classes’ of witnesses, in particular the quasi expert.

Whilst experts may feel a degree of unease about the judgement it represents, in my view, a sensible and inevitable position and one which should hold no fears to the expert who continues to act in a conscientious and professional manner.

For further details, please contact Richard Walmsley:

Gardiner & Theobald Fairway Limited
Met Building, 22 Percy Street,
London, W1T 2BU.

Tel: + 44 (0) 20 7209 8400
Fax: + 44 (0) 20 7209 8450

email@gtfairway.com