The End of Expert Witness Immunity

The nature of construction disputes is such that expert witnesses are often used to resolve them. For over 400 years expert witnesses have enjoyed immunity from being sued for negligence when acting as experts in legal proceedings. That position seemed certain, even unassailable. It also applied to other disputes involving experts, such as personal injury claims.

But on 30 March this year the Supreme Court, the highest court in the land, brought that 400 year immunity to an abrupt end. The case in question was Jones v Kaney. The case concerned the Appellant’s claim against his own expert. He wanted to sue the expert he had used in his court case for negligence. The key issue was not so much whether the expert was negligent, but whether as a matter of law she could be sued for negligence at all.

The Appellant’s expert had decided, after a telephone conversation with the other party (the defendant), to switch sides. The Appellant’s expert signed a joint statement with the defendant’s expert. That statement included comments such as that she found the Appellant (for whom she was acting) to be “deceptive and deceitful”. Perhaps not surprisingly this was very damaging to the Appellant’s claim. As a result the Appellant had to settle for significantly less than he would otherwise have done.

The Appellant was aggrieved at the actions of his expert. He had appointed her, was paying her, yet had ended up with his own expert signing a joint statement with the other party to the dispute, effectively acting against him.

At this point readers should bear in mind that experts in court proceedings are meant to act independently, and are there to assist the court.

Nevertheless there was evidence that the Appellant’s expert had been negligent in the way she had acted. But there was a serious problem for the Appellant in pursuing a claim in negligence against his expert. Even if he could prove the expert had acted negligently, the existing case law was that experts could not be sued in negligence when acting in court proceedings (such immunity also used to apply to solicitors and barristers when acting for their clients, but no longer).

The issue of whether expert witnesses should continue to be immune from being sued for negligence in legal proceedings eventually came on appeal before the Supreme Court in the Jones v Kaney case. After a detailed consideration of the case law, the court ruled that experts should no longer have such immunity. This brings them broadly into line with the position of barristers and solicitors.

It remains to be seen whether this decision will open the floodgates to claims from disgruntled litigants against their experts. What is clear however is that this does mark a new era for experts. If they are negligent, their clients will now be able to take action to recover any resulting losses.