Expert witness immunity

The duty of experts to comply with Part 35 of the Civil Procedure Rules (CPR) and assist the court did not conflict with their duty of care owed to the client. An expert witness will be retained on the basis that he would comply with the CPR and any relevant professional standards. Therefore his duty to the client took into account his obligation to assist the court.
This perceived conflict was not likely to result in a flood of claims for breach of duty and indeed the removal of Barristers’ immunity in 2002 had not caused a similar result.

One of the issues considered by the Supreme Court was whether the immunity of expert witnesses had already been eroded by previous decisions confirming that experts were not exempt from professional disciplinary proceedings (Meadows v General Medical Council [2006] EWCA Civ 1390) or wasted costs orders (Phillips v Symes (No 2) [2004] EWHC 2330 (Ch)).

The finding was that those risks made experts abide by their duty to the court even if such action exposed them to criticism from their clients.
Accordingly there was no justification for keeping immunity on the basis that it keeps experts on the straight and narrow.

In the light of those risks the vast majority of expert witnesses are already exercising extreme care when acting. It should be remembered that the test for negligence has not changed and that if an expert gives an opinion within a reasonable range of values, then he is not negligent even if he has substantially changed his opinion. The change in position simply indicates that he is complying with his duty to the court.

Those accepting instructions to act as expert witnesses should check that their professional indemnity insurance provides adequate cover and an overhaul of engagement letters is also recommended. For example, an expert may now wish to consider limiting his liability as a result of this decision.
Expert witness work will remain a challenging and rewarding role. The removal of immunity has emphasised that experts need to be confident that their opinion is correct and be able to justify it. If a change has to be made to that opinion then accurate file notes should be kept of the reasons and associated discussions with the client, particularly when agreeing a joint statement.

It may be that the effect of Jones v Kaney will be to discourage the minority of experts who pitch their client’s case too highly which should result in disputes being resolved more quickly. It may also weed out those without the necessary skills and/or insurance, neither of which can be said to be a bad thing.

Ben Sharples MRICS FAAV is a Partner at Wilsons Solicitors LLP. He is dual qualified, having originally trained as a rural practice chartered surveyor.