Expert witnesses lose immunity from legal actions in England and Wales
In a landmark judgment handed down on Wednesday 30 March 2011 by the Supreme Court in Jones v Kaney, expert witnesses who give evidence during the course of court proceedings in England and Wales have now lost their immunity from being sued by their clients for negligence and breach of contract in relation to their reports and evidence generally.
This change in the law is highly relevant for professionals who act as expert witnesses in court proceedings. This includes experts giving evidence on questions of foreign law. It reverses the immunity from suit for negligence and breach of contract which expert witnesses have enjoyed for over 400 years in the English and Welsh courts.
The impact on expert witnesses is likely to be significant. It not only raises the spectre of potential legal action from disgruntled clients but will also impact upon the decision making processes which experts will need to undertake before deciding to accept instructions from clients involved in litigation.
Where existing instructions are subject to difficulties as a result of changing advice or are likely to result in adverse or unfavourable conclusions, experts need to be aware that they are now more likely to face not only increased scrutiny but also possible litigation from their clients.
In light of the judgment in Jones v Kaney many professional firms will need to re-examine their standard terms and conditions with regard to their limitation and/or exclusion of liability in relation to expert witness related services. The coverage and extent of professional indemnity insurance policies should also be reviewed and enhanced where necessary.