Supreme Court Abolishes Expert Witness Immunity

Posted: 8th May 2011

IThe Supreme Court has held, by a 5:2 majority, that the immunity from suit for breach of duty previously enjoyed by expert witnesses taking part in legal proceedings should be abolished, except in respect of defamation suits. The decision means that negligent expert witnesses may now face litigation if their evidence causes a loss to the party instructing them in litigation.

The decision arose in a personal injury case in which the claimant, who had suffered psychiatric consequences as well as physical injuries after being knocked off his motorcycle by a drunk driver, wished to sue for negligence the clinical psychologist instructed to prepare a report on his injuries.
The High Court ruled that as an expert witness the psychologist had immunity from such a claim. However, as the case involved a point of law of general importance, Blake J allowed an appeal directly to the Supreme Court.
Lord Phillips, giving the leading judgment, dismissed the argument that without immunity experts would be apprehensive about giving their honest opinion, particularly where this has altered over time, if this proved adverse to the case of the client. Expert witnesses have a duty to give their evidence honestly and to assist the court on matters relevant to their area of expertise. In Lord Phillips’ view, it is ‘paradoxical to postulate that in order to persuade an expert to perform the duty that he has undertaken to his client it is necessary to give him immunity from liability for breach of that duty’.
Furthermore, it would be wrong to perpetuate the immunity enjoyed by expert witnesses out of mere conjecture that they would be reluctant to perform their duty to the court if they were not immune from suit for breach of duty. Lord Phillips drew a comparison with barristers, whose immunity from being sued over the way they handle cases in court was abolished in 2001. Removal of their immunity had not resulted in any diminution of their readiness to perform their duty, nor did the move result in large numbers of law suits with no merit.