This week has seen a major decision come out of the new Supreme Court (the House of Lords in old money) in respect of the immunity enjoyed by expert witnesses.
Until this week an expert witness enjoyed immunity from any form of civil action arising from the evidence that he or she gave in the course of Court proceedings. The development of the rule can be traced back 400 years and was designed to prevent defamation claims from being brought against witnesses. This was then extended to all forms of civil suit.
However, this week a majority of the Supreme Court ruled that that immunity should no longer cover a claim for negligence and/or breach of contract. The reasoning of the Supreme Court was that a general rule of law in this country is that every wrong should have a legal remedy. Any exception to this rule must be justified as necessary in the public interest and that such an exception should be kept under constant review. The majority concluded that there was no longer sufficient justification to restrict claims against experts for breach of contract and negligence.
In making this decision the majority of the Supreme Court drew heavily on the fact that the abolition of similar rule in respect of advocates by the House of Lords in 2001 and had not lead to a large number of questionable claims neither was there any evidence it had effected the willingness of people to appear as advocates.
It is the writer’s experience that the vast majority of expert witnesses carry out their role diligently, professionally and in accordance with their duties to the Court and should not be overly concerned by this change in the law. The decision does, however, provide a remedy in very exceptional circumstances to the litigant whose case may be prejudiced by a rogue or incompetent expert witness.
Should you wish to discuss this decision or any other issue relating to professional negligence please do not hesitate to contact Robert Anderson on 0113 245 0733.
