Expert Witnesses’ Immunity – On its last legs? – Update

 As anticipated in the previous article, the question of whether an expert giving evidence in civil proceedings is still immune from a claim for a breach of duty has now been considered by the Supreme Court.

The key arguments heard by the Court were:

• Whether the removal of the immunity would have a "chilling effect" on expert witness work such that experts would be more reluctant to provide their services; or worse still be concerned about giving evidence which was contrary to their client's expectation for fear of being sued. This argument was dismissed on the basis that it did not make sense that an expert would only properly perform his duty if he was immune from the consequences of not doing it properly. It was also noted that there was no such "chilling effect" when barristers' immunity had been removed ten years previously.
• That there was a prospect of vexatious claims from unhappy litigants. This was dismissed on the basis that any such claim would have to be supported by another expert in the same profession who was prepared to say that the views or actions of the first expert were not those which could reasonably be expected within that profession ("the Bolam test").
• That removal of the immunity was likely to deter an expert from giving full and frank evidence.  The Court held that an expert should have nothing to fear from a disgruntled client provided his position is tenable and soundly based, even if it differed from a view previously expressed.

 Consequently, by a majority of 5 to 2, the Supreme Court held that there were no reasons to maintain the immunity.

The effects of this new situation are likely to be primarily within the professional indemnity insurance market.  But it may also dissuade the "inexpert" expert from dabbling in the work in the first place.

 Michael Bonning is an Associate in the Michelmores Construction Team. For further information on any of the issues raised in this article, please contact Michael at michael.bonning@michelmores.com or on 01392 688688.