Expert Witnesses: Immunity On The Brink

The Supreme Court is set to rule upon whether an expert witness retains immunity from suit in relation to evidence given in civil proceedings. In Jones v Kaney a certificate for leave to appeal direct to the Supreme Court on this point has been granted, effectively leap-frogging the Court of Appeal.

A consultant clinical psychologist was retained to act as an expert witness for the claimant in a personal injuries claim. Following a telephone discussion between the experts in the case, the claimant's expert signed a joint statement prepared by the opposing expert, without making any comment or amendment. She later said that the joint statement did not reflect what she had agreed in the telephone discussion but that she had felt 'under pressure' to sign it. As a result of the damaging nature of admissions in the joint statement, the claim was settled for a sum that was considerably less than would have been the case if the claimant's expert had not signed the joint statement in the terms that she did.

As the law currently stands an expert witness in civil proceedings is immune from being sued. The court has the power to sanction poorly performing experts: by public criticism; by curbing their recoverable costs or; in extreme cases, by debarring their evidence altogether. However, it is the instructing client that suffers the main impact of such measures and not the expert.

This blanket immunity has historically been justified by citing the public interest in expert witnesses giving frank and accurate evidence without fear of recourse by a client whose case is lost. The Supreme Court will be putting this policy consideration under the magnifying glass shortly.

Comment

We anticipate that the Supreme Court is likely to abandon the blanket immunity rule for expert witnesses as it is too broad to be justifiable any longer.

An expert's duty of care to their instructing client should be ongoing during civil proceedings and not confined to advice provided technically outside of those proceedings. Ordinary principles of professional competence should require the expert to perform in a non-negligent manner when, for example, signing a joint expert statement or producing a report for service in proceedings.

A change in the law would further discourage irresponsible experts. In the current...