Supreme Court Abolishes Immunity for Expert Witnesses

The Supreme Court ruling in respect of Jones v Kaney. This landmark ruling has the effect of abolishing the immunity previously available to expert witnesses from claims arising out of the evidence prepared and for the purposes of, and in connection with, legal proceedings. This ruling has wide implications for and professional who provides expert testimony in the course of their work and may have an impact on professional indemnity premiums in the longer term.

Lord Phillips, who delivered the lead judgement of the majority, set out arguments in favour of removing immunity for witnesses. One of the points that he made is that the vast majority of expert witnesses carry professional indemnity insurance. Whilst this is true in some cases, there are a good number of individuals that provide expert witness services without purchasing PII cover.

One of the major problems that will arise from this judgment is that many experts who have PII cover do not realise that the cover needs to be in place not just when the work is carried out, but also later when a claim is received. In the case of court work this can be many years later. The impact on the expert witness is that they will have to retain their insurance cover for many years, even though they might only give evidence on very rare occasions.

Another area of concern that arises in respect of the PII cover that expert witnesses purchase, is the extent of cover. Many witnesses buy cover for their business or company, and assume that the cover extends to the expert witness work that they do in a personal capacity. In fact unless the individual is specifically named as being covered in this capacity on their insurance policy, many policies will not cover this angle of the work.

The decision by the courts could opens up the floodgates for successful negligence claims being made against expert witnesses. If this happens it will impact on professional indemnity premiums as previously this particular activity has been viewed by insurers as a low risk activity – largely because of the immunity previously afforded.

Expert Witnesses who would like help and advice with their Professional Indemnity Insurance can call PI EXPERT on 01825 745 410.

For further details of this case please see the PI Protect case notes prepared by Berrymans Lace Mawer