Expert witness immunity: the end of the road?

Abstract

Anyone reading this article who practises as an expert witness, whether in the criminal or the civil courts, and no matter in what area of expertise, needs to keep an eye on the outcome of a case that is being heard on 11 January – before the Supreme Court (the successor court to the House of Lords) called Jones v Kaney. It may be an exaggeration to say that its likely importance is demonstrated by the fact it was featured on the Today programme on 25 November 2010, but nonetheless the Supreme Court's decision, whichever way it goes, will end once and for all any debate around the question whether expert witnesses should be immune from negligence actions in respect of their court work. As to this, the ‘smart money’ is, I fear, on the Supreme Court bringing to an end this somewhat anomalous immunity. This article looks at the nature of the expert's immunity, the facts of Jones v Kaney and assesses what it might be mean for experts in future if their immunity is indeed removed in 2011.