February 28, 2014

Third Anniversary of the Abolition of Expert Witness Immunity

The change

The decision of Jones v Kaney handed down by the Supreme Court in March 2011 removed 400 years of legal immunity provided to expert witnesses in legal cases.  This had hitherto protected them from legal suit by their clients.  The ruling means that experts can now be sued in contract or negligence for breach of duty in relation to their role in a legal claim.

Implication for claims in professional negligence

The decision is a significant development for those bringing actions in professional negligence and is of particular importance to those dissatisfied with the outcome of a claim in clinical negligence.  This field of law relies more heavily than most on the role of the expert witness.  Experts in these cases tend to be medics, nurses and others involved in the healthcare profession.

In such cases those experts provide guiding opinion to the lawyers and the court on what would be a reasonable level of care in the situation in question, on whether a fall in that level has caused injury and, if so, on the prognosis of that injury.  This expert opinion is central to the outcome of these cases.

Where an expert has caused detriment to the claim’s outcome without justification, a dissatisfied claimant now has additional legal options.  Whereas previously the only legal recourse would have been to bring a suit in professional negligence against their lawyer, the claimant can now also seek to hold their expert to account .

Who does this apply to?

The removal of immunity applies not just to evidence given by experts in the witness box, but also to the reports they prepare and additional work they undertaken in contemplation of, and during the course of, legal proceedings.  Situations in which claimants can seek to pursue their expert are manifold; for example where they have radically and unjustifiably changed their opinion on the evidence without new basis.  Whereas previously a claimant would have tried to sue their lawyer for inappropriate choice of expert, now they can look to the actions of the expert him/herself as the basis of a cause of action in professional negligence.

If you have experienced an adverse outcome in a legal claim which has arisen from substandard service provided during the course of the claim by your lawyer or appointed expert, contact our experienced professional negligence team who will be able to provide you with a free assessment of your claim.


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