Herbert Smith Freehills LLP

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Question

What is witness immunity and why does it extend to experts in litigation?

Answer

Witnesses in legal proceedings are immune from liability for negligence both in relation to evidence given in court and work which is closely connected to it; the rationale behind this being to allow evidence to be given freely without fear of suit. 

The immunity from suit afforded to witnesses is extended to expert witnesses with respect to testimony in court or work otherwise intimately connected to court proceedings - such as the creation of expert reports. The Court of Appeal upheld such absolute immunity in Stanton v Callaghan (2000). The position was then confirmed in General Medical Council v Meadow (2006), which set out the objectives of immunity as being to ensure that expert witnesses can give evidence "freely and fearlessly", and to avoid multiplicity of actions in which the truth of evidence provided by a witness would be tried over and over.

Should expert immunity be removed?
Expert immunity has come under attack recently in the High Court case Jones v Kaney (2010). Justice Blake summarily struck out a negligence claim against an expert witness on the basis that he was bound by the decision in Stanton; expert immunity was therefore a complete defence to the claim (albeit that no defence on the merits was filed).

Since the Court of Appeal would also be bound by Stanton, Blake granted the claimant a 'leapfrog' certificate bypassing the court and allowing the Supreme Court to decide whether to allow an appeal. Permission was granted and the appeal was heard on 11 and 12 January 2011. 

It is not inconceivable that expert immunity will be removed (whether in the judgment of the Supreme Court in Jones, or in future decisions) particularly in view of:

  • the attacks on the public policy underpinning the doctrine of expert immunity;
  • the fact that many experts derive income or build full-time careers on acting as expert witnesses;
  • the decision in Phillips and others v Symes and others (2005) that an expert witness can be joined as a respondent for the purposes of costs; and
  • the judgment of Lord Hoffman in Arthur JS Hall & Co v Simons (2002) which overruled the long-standing principle that advocates, whether solicitors or barristers, were immune from suit for things done or omitted in the course of conducting a case in court.

While Blake held in Jones that the principle of expert immunity remains good law, he raised doubts as to its continued application. He opined that such blanket immunity may be too broad to be sustainable, that it raises important questions in relation to the right of access to court under the European Convention on Human Rights and that it could potentially leave injured parties without a remedy.    

Consequences of removing expert immunity
The future of expert immunity remains to be seen: it could be preserved for the foreseeable future, it could be abolished entirely or its application could be reduced to only certain aspects of an expert's conduct. It is certainly easier to comprehend and accept the public policy considerations regarding immunity for oral testimony during a trial, as opposed to the immunity which extends to a negligently prepared expert report.

If expert immunity is reduced in scope or abolished entirely, a negligent or reckless expert could find himself being sued for breaching the duty of care he owes to his client. This could result in (i) an increase in professional indemnity insurance premiums or insurance ceasing to cover experts for advice provided negligently, and/or (ii) experts across all professions and industries declining to act as experts in litigation where there is any risk of being sued over their opinions or conduct as an expert.

Should the removal of expert immunity result in a marked decline in the number of people prepared to act as experts in litigation, there could be negative consequences for those disputes that are heavily reliant on expert testimony. It is worth noting, however, that this has not been the case with advocates following the abolition of advocate immunity (although arguably this is because advocates derive their living from this function so have little other choice).

If immunity is reduced in scope or abolished, experts will certainly start to question whether the benefits of acting as an expert witness outweigh the risk of a suit.

Elizabeth Legge is a trainee currently on secondment to the Singapore office of Herbert Smith LLP.

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