Expert witness’ immunity abolished 31 Mar 2011

In a landmark decision, a majority of the Supreme Court has decided that the immunity from suit for breach of duty enjoyed by expert witnesses instructed in legal proceedings, which dates back over 400 years, should be abolished.

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.

The claimant brought proceedings against the expert and the expert relied upon the principle that an expert witness in civil proceedings is immune from being sued. At first instance the expert was successful and the claim was struck out. However given the importance of the case leave was given to appeal direct to the Supreme Court.

The Supreme Court, by a majority of 5-2, then decided that expert witnesses do not enjoy immunity from suit for the evidence that they give. The Court dismissed fears that this could lead to increased litigation against experts or that professionals would be reluctant to provide expert witness services. The Court also dismissed concerns that abolishing the immunity would prevent experts from providing the Court with full and frank evidence.

This decision will clearly have an impact both upon professionals who provide expert witness services (and who are no longer immune from suit), and their insurers.

This article was written by Beale and Company Solicitors LLP and has been reproduced with their permission. Beale and Company Solicitors are a niche commercial law firm specialising in providing advice to the professions, insurance and construction industries. For more information please visit www.beale-law.com.