Opinion: No need to fear the end of expert witness immunity

Ten years ago a surveyor giving expert ­evidence in court claimed to have ­expertise in a particular area.

Nick Cheffings
Nick Cheffings

He did not, the case collapsed and his client sued him.

The client lost because the expert enjoyed immunity from any civil action arising from the evidence he gave. This immunity applied despite the fact that the expert had been lying. It struck me at the time that this was an absurd proposition. So I was particularly pleased to see that, on 30 March, the Supreme Court (albeit by a majority of five to two) concluded that expert witness immunity should be abolished.

Witness immunity dates back more than 400 years to a time long before the development of the modern law of ­negligence. It sat alongside the wider immunity enjoyed by advocates. Following the abolition of that immunity by the House of Lords in 2001 there seemed to me to be no logical justification for ­continuing expert witness immunity.

However, there have been suggestions that its abolition will give rise to a number of problems, many of which were aired by the Supreme Court. Indeed, Lord Hope and Lady Hale (dissenting), considered the wiser course to be to leave the question of reform to Parliament.

In my view the majority made the right decision. It is a sensible decision for a modern society and it now requires those affected by it to act sensibly. It is said that many people will decline to act as expert witnesses because of the new fear of ­negligence claims. That is an overreaction based on an oversimplification. True ­professionals have nothing to fear from this decision. They should continue to do the best that they can with the information they have, acting independently and with integrity.

They are already exposed by the threat of a so-called ­’wasted costs’ order and, for the vast ­majority who are members of ­professional organisations, by the risk of disciplinary proceedings if they overstep the mark.

What the decision may do is rein in some of the wilder excesses of experts who exaggerate the strength of their clients’ cases, often simply to ensure that they get instructed in the first place. That would be a welcome upside.

Some also fear a dramatic increase in professional indemnity premiums, but there is no need for that. Loading ­premiums in anticipation of a flood of claims that is unlikely to happen, and ought not to happen, is not justifiable.

The decision also requires lawyers to play ball. Leaning on an expert witness to say the right thing should not be part of any litigator’s armoury and this ruling makes that even more important.
Lawyers also need to resist the ­temptation to buy into the blame culture some fear will be triggered by this ­decision. It is said that clients who have lost their cases will now blame their expert witnesses. ­Sometimes they will be right to do so. Most of the time they will be ­completely wrong – the case will have been lost for some other reason or perhaps simply because the expert ­witness has given their honest ­opinion without bias.

A client who wants to sue the expert for losing a case needs clear advice from their lawyer about the difficulties of ­bringing a ­successful claim, and the ­realities of life; sometimes your case is just not as good as you wish it was – live with it.

If people behave responsibly there is no reason why the fears expressed by some about the impact of this ruling should become reality.

This decision is the right one. In a modern society people who are well-paid for their expert services should not be allowed to walk away from the consequences of their incompetence.