Latest Expert Witness News

Change to Expert Witness immunity

Expert witnesses have lost their 400-year-old immunity from being sued in the civil courts. The expert witness immunity rule has traditionally been justified by reference to the public interest in expert witnesses giving truthful and fair evidence in court. Without fear of being sued by a party whose case is lost.

The Supreme Court passed a majority decision to abolish immunity by a majority of five to two. Lord Philips who sat on the panel stated: “I conclude that no justification has been shown for continuing to hold expert witnesses immune from suit in relation to the evidence they give in court or for the views they express in anticipation of court proceedings.”

Lord Philips stated: “Whether professional persons are willing to give expert evidence depends on many factors. I’m not persuaded that the possibility of being sued if they are negligent is likely to be a significant factor in many cases in determining whether a person will be willing to act as an expert.”

Lord Philips also stated that an “Expert witnesses clearly owe the party retaining them a contractual duty to exercise reasonable skill and care.”

This is true but surely the experts duty is first and foremost to the court. There is a fear that this ruling opens the floodgates for expensive, time consuming litigation.

When asked if this descion would deter experts from undertaking cases, Lord Phillips replied, "All who provide professional services which involve a duty of care are at risk of being sued for breach of that duty. They customarily insure against that risk."

He added that a useful parallel came from the position of barristers: "Yet removal of their immunity has not in my experience resulted in any diminution of the advocate's readiness to perform their duty to the court.”

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