Recent developments in expert witness liability in UK courts

• Law Firm: ExpertsDirect
• Subject Matter: Litigation, Mediation & Arbitration, Court Procedure
• Published date: 14 April 2023

Although generally immune from suit in the United Kingdom, experts can still be sanctioned by the court in the form of costs orders. UK Courts in the recent case of Robinson v Liverpool University Hospitals NHS Trust and Mercier [2023] EWHC 21 (KB) however have shown that they err towards protecting experts from being sued, even in the absence of expert witness immunity.

The case confirms an ongoing trend towards protecting expert witnesses from suit in common law countries, and may pave the way for standards of expert witness liability should Australian courts decide to follow the UK in abolishing expert witness immunity.

Abolition of Expert Witness Immunity in UK Courts

UK courts abolished expert witness immunity in Jones v Kaney [2011] UKSC 13. The case concerned a claim in negligence brought by the applicant, a victim of car accident, against his expert witness. The consultant psychiatrist expert witness had mistakenly signed a joint statement with another expert confirming that the applicant had grossly exaggerated their PTSD symptoms, leading the applicant to settle for significantly less than the amount to which they were in fact entitled. The court considered the expert's conduct sufficiently serious and exceptional in both consequence and failure of expert witness duties to warrant an available legal remedy.

The court also refuted arguments against the removal of the expert witness immunity firstly by maintaining that the abolition would not significantly compromise expert witness impartiality to the extent of becoming harmful to public interests. The routine and uncontroversial functioning of advocates who are also liable to clients provided ample evidence that experts were capable of balancing their loyalty to clients against their duty to the court to remain impartial. Secondly, the court rejected as inaccurate the assumption that the removal of expert witness immunity would deter experts from taking up expert witness work.

High Standard for Costs Orders Against Experts

The recent case of Robinson v NHS Trust and Mercier demonstrates that although experts are not liable to suit, the extent of misconduct warranting a costs order remains exceptionally high in UK courts.

The case at first instance involved a claimant who engaged a general dentist expert witness to assess the procedures of an oral & maxillofacial surgeon that led to the failure to extract the claimant's tooth. The defendant NHS Trust sought a Costs Order against the expert after...