English Supreme Court Abolishes Expert Witness Immunity

Parties involved in litigation involving artworks often rely on the evidence of expert witnesses when advancing their case in court. Expert witnesses may be art dealers, professional art valuers, auctioneers or experts on a given artist. The opinion of expert witnesses may be sought (and relied upon by the Court) on a wide range of issues, including auction practices, valuations, authenticity, insurance related matters and so on.

If you agree to act as an expert witness in English court proceedings, take note: the English Supreme Court has recently abolished the immunity from civil suit that expert witnesses had previously enjoyed when giving evidence in legal proceedings (civil and criminal).

Expert witnesses can now be sued for negligence for the views they express at any stage of the litigation process. The distinction that did exist between work done at the early stages of a claim, which was actionable, and work done in the later stages relating to the evidence given at trial, which was not, no longer exists.

Facts of the case

Mr Jones, a motorcyclist, was knocked down by a drunk, uninsured and disqualified driver. He sustained serious physical injuries as well as Post Traumatic Stress Disorder ('PTSD'). In his claim for damages, he relied on the report of a consultant clinical psychologist, Dr Kaney, who confirmed that at the relevant time he was suffering from PTSD. This view was not shared by the defendant's expert and so the District Judge ordered that the two experts hold discussions and prepare a joint statement.

The experts discussed the situation by telephone and the defendant's expert prepared a draft joint statement which Dr Kaney signed without amendment or comment.

The joint statement was damaging to Mr Jones' case and concluded that, amongst other things, he was not at the time suffering from PTSD.

When Mr Jones' solicitor asked Dr Kaney to explain the discrepancy between her earlier assessment and the joint statement, she said that the joint statement had been drafted by the opposing expert and did not reflect what had been agreed between them. However, she felt under some pressure to sign it even though it did not reflect her view that Mr Jones was suffering PTSD at the material time. Mr Jones applied for permission to change his expert but the District Judge refused. Consequently,

Mr Jones settled his claim for significantly less than he would have done had Dr Kaney not signed the joint statement in the terms she did.

Mr...