Abolition Of Expert Witness Immunity In UK - What Does It Mean In Hong Kong?

As readers will be aware from our alert on 30 March 2011, the UK Supreme Court handed down a landmark judgment that day in the case of Jones v Kaney [2011] UKSC 13 (the judgment). The effect of the judgment (by a majority of five to two judges) is to abolish an expert witness's immunity from suit with respect to testimony given in court or with respect to work intimately connected with the conduct of court proceedings in the UK. In this article we take a look at issues that arose in the case and what the judgment might mean for litigants and experts in civil proceedings in Hong Kong.

What are the key points and likely practical lessons?

In court proceedings in the UK experts no longer enjoy immunity from suit for negligence claims arising out of their report or the evidence they give in relation to court proceedings. Claims against experts in respect of acts or omissions that took place before the judgment are actionable subject to rules relating to time bar (limitation periods). Going forward, successful claims against experts in the UK are likely to be rare. If an expert expresses an opinion that is honestly held and within the range of reasonable expert opinion, he/she will have discharged his/her overriding duty to the court and will not be liable merely because that opinion is adverse to his/her client's case. Experts, just like witnesses of fact, continue to enjoy protection against claims for defamation arising out of their evidence given in court. Just like some accountants and larger law firms, experts are likely to use this opportunity to review their terms of engagement and consider whether they should try to exclude or limit their liability as a matter of contract (insofar as is consistent with local legislation). Experts that do not have professional indemnity insurance should have, whether as part of a corporate policy or an individual bespoke policy. It is only a matter of time before a challenge to expert immunity is made in Hong Kong. If such a challenge was successful (which is by no means certain) then claims could be brought in respect of breaches of duty that took place before a change in the law in Hong Kong. Accordingly, experts retained in court proceedings in Hong Kong should also have professional indemnity insurance cover. Insurers are likely to ask more questions in proposal forms for professional indemnity insurance cover regarding whether an insured undertakes expert work and to what extent. Professional...

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