Experts Duty of Care: Immunity no more

Readers may recall that in the March 2010 edition we considered the cases of Stanton v Callaghan and Jones v Kaney and whether expert witnesses could be sued by the parties appointing them.

The Supreme Court has now handed down its judgment in the Jones v Kaney appeal.

One of the reasons for justifying expert witness immunity was that if immunity was removed experts may be more reluctant to give evidence, particularly given the expert’s overriding duty to give full and frank evidence to the Court, which is potentially in conflict with the expert’s duty to the party paying the expert’s fees.

The Court did not find this argument to be persuasive and did not consider that immunity was necessary to ensure either that the expert discharged his/her duty to the Court or to prevent experts being inundated with vexatious claims from disgruntled clients.

In the circumstances, the Court decided there was no justification for continuing to hold expert witnesses immune from claims in relation to evidence they give either to the Court or to their clients in anticipation of legal proceedings.

Immunity has therefore been abolished.

COMMENT: Interestingly one of the judges confirmed that experts have a duty to their clients to exercise reasonable skill and care, and that this was actually more likely to result in a fair outcome rather than experts acting a “hired guns” who express views either too inflexibly or with unrealistic merits of success.