Abolition of Expert Immunity - Opening the Floodgates for Claims?

The immunity that expert witnesses have typically enjoyed in the UK has recently been abolished by the Supreme Court of England and Wales meaning that 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 to clients. Our Projects & Construction Department analyse the implications of this case. 

 

The role of the expert witness is central to litigation, arbitration, conciliation and virtually any form of dispute resolution with a high technical content, such as, construction, projects, property and other specialised fields.

The immunity that expert witnesses have typically enjoyed in the UK has recently been abolished by the Supreme Court of England and Wales.

In that case the Court decided that there is no further justification for expert witness immunity. This now means that expert witnesses can be subject to claims in negligence arising from their failure to exercise reasonable skill and care in providing expert witness services to clients. This would apply to both the evidence experts give in court or the opinions or advice given prior to a hearing.

In Ireland, both the Supreme Court and High Court have previously upheld expert witness immunity. While the UK case is not binding in Ireland, it could amount to very significant persuasive authority if attempts are made to abolish expert witness immunity here.

Abolition of expert immunity if it were to arise in Ireland in itself would be unlikely to give rise to a flood of new negligence claims. Indeed the Court in the UK case stressed that in practice, liability of experts ought to be “highly exceptional”.

The Court noted 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 this criterion.

Another practical implication which is likely to occur relates to the maintenance of professional indemnity insurance and seeking contractual limitations on their exposure to giving expert witness advice. Nonetheless many experts already retain such insurance and seek such limitations in any event as part of their overall primary professional roles.

In our view, it is unlikely that the floodgates will open for claims against expert witnesses arising from the abolition of witness immunity alone. However, there is a risk that there could be additional costs passed on to clients and increased focus on contractual limitations.

Contributed by Cassandra Byrne, Jarleth Heneghan.

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