The immunity from being sued that expert witnesses have typically enjoyed in the UK for hundreds of years has been abolished in a recent landmark decision by the Supreme Court of England and Wales. What does this mean for the role of the expert witness in Ireland?
The Supreme Court of England and Wales in Jones v Kaney UKSC 13 has decided that there is no continuing justification for expert witness immunity.
Up to now, expert witnesses in England and Wales have benefitted from the same immunity from being sued which judges, juries and witnesses of fact also enjoyed. This applied to both expert witness testimony given in Court and to experts’ conduct in Court proceedings. Until 2002, barristers and advocates had similar immunity.
Immunity of expert witnesses meant that they could not be sued in contract or tort for either evidence given or reports relied upon in Court. They could remain liable for ordinary professional advice or opinions given to clients outside a dispute context.
A reason for abolishing expert witness immunity is the public policy argument that experts should be accountable for their conduct and if a breach of duty arises that there should be a potential remedy. There is a historical perception in some quarters that there could be a potential conflict between experts’ duty to their client and to the Court particularly if faced with providing evidence contrary to their client’s interest. This case however enforces the position that there should be no such conflict.
Experts’ immunity from defamation claims arising from their services is not affected by this case. As an English case it is only binding in England and Wales and therefore is of persuasive authority only in Scotland, Northern Ireland and Ireland.
What is an experts witnesses’ liability?
Expert witnesses can now be subject to claims in negligence arising from their failure to exercise reasonable skill and care in providing expert witness services. In this case the Court held that if an expert gives an independent and unbiased opinion which is within the range of reasonable expert opinions, they will have discharged their duty to their client. Therefore experts who have pro-actively and professionally engaged in the process of giving expert advice or testimony are likely to satisfy these criteria.
Expert Witnesses and the Irish Courts
Several cases in Ireland have examined expert witness immunity. One of the leading cases is the Irish Supreme Court decision in Looney v the Governor and the Company of Bank of Ireland & Morey (Unreported, Supreme Court, 9 May 1997) which upheld witness immunity. The case provided that a Court could suspend witness immunity (which would include experts) if the witness makes defamatory or malicious statements.
The principle of expert witness immunity was reinforced in the decisions of O’Keeffe v Kilcullen IEHC 17 and WJ Prendergast v Carlow County Council, Redvers Skelton (2007) IEHC 192. Some statutes further expressly support the principle of immunity. For example, immunity of experts in arbitration proceedings is reinforced by the Arbitration Act 2010.
“Whilst Jones v Kaney is not binding in Ireland could it persuade law makers to sweep away one of the last bastions of legal immunity?”
If expert immunity were to be abolished by the Irish Courts in our view it would be unlikely to give rise to increased negligence claims. Experts are generally professional in their approach. Indeed the Court in Jones v Kaney stressed that in practice, liability of experts ought to be “highly exceptional”.
Some practical implications which will impact service providers and clients alike could include:
- Experts’ professional indemnity insurance costs may increase
- Caveats may be introduced to Experts’ professional indemnity insurances by insurers
- Experts may seek contractual limitations in their appointments.
- Increased risk of liability may arise from either opinions given by expert witnesses or their conduct during proceedings
- Experts should be comfortable with their advices and be flexible in providing opinions.
- In giving joint reports, consultants need to remain independent and keep the client informed.
- Experts may limit advice within areas of specialisation and appropriate qualifications, expertise and experience will be paramount.
- The overall quality of reports and services would be likely to improve.
In our view, any removal of this last bastion of immunity is unlikely to open the floodgates for claims against expert witnesses. Further the numbers of expert witness service providers are unlikely to dramatically reduce due to fears of increased litigation. However, there is a risk from this case that there could be additional costs passed on to clients and increased focus on contractual terms and conditions by experts.
There are certain practical implications for both clients and expert witnesses which will flow from the case. Experts will seek to mitigate any increased risk, whether perceived or actual, arising from this case. It will remain to be seen what approach the Irish Courts will take when next considering the issue of expert witness immunity.
Contributed by Cassandra Byrne, Associate and Jarleth Heneghan, Partner. This article appeared in Public Affairs Ireland 2011.