Loss Prevention Alerts

ALERT 35:  Erosion of Expert Witness Immunity

Increasingly construction cases are determined by expert witness evidence. Many AGS members act as expert witnesses.

It has been accepted for some time by the courts than an expert will be immune from suit in respect of his evidence at trial and in respect of the contents of a report prepared for service in proceedings. The rationale for this is that an expert should be able to give evidence fearlessly, owing a primary duty to the court rather than the party who pays his fee, and this would be undermined if the expert could be sued for negligence.

However, in a recent case Phillips v. Symes [2004] EWHC 2330 the court permitted an expert to be joined as a party to the action for the purposes of costs. The claimants demonstrated to the court that the evidence given by the defendant's expert was seriously flawed. The claimants realised they could not recover their costs from the defendant (who was bankrupt) so they sought to recover costs from the expert. The expert resisted on the grounds of his immunity. The court held that the expert could be joined and his immunity did not protect him from a claim for costs.

Note though that the trial judge decided that the expert would only be liable to pay costs if found to have acted recklessly or in flagrant disregard for his duties to the court. The expert's mere negligence was not enough. Although this is a first instance decision - and might therefore be appealed - it represents a potentially significant erosion of expert witness immunity, especially given that, in construction cases, liability for costs is often fought over as vigorously as liability for damages.

Finally, note that an expert's immunity only arises in relation to oral evidence at trial, meetings and discussions between experts and the production of joint reports, the contents of a report prepared for use in proceedings and pre trial work "intimately connected with the conduct of the case in court." An expert will not be immune in relation to commercial advice, pre litigation advice or pre trial advice given early in proceedings.

This loss prevention alert has been produced by the Loss Prevention Working Group (LPWG) of the AGS. It highlights issues that the LPWG considers may be of relevance to members. It is not intended to provide a definitive response to any issues and before taking action members should consider carefully whether they need to seek independent legal advice.

Prepared for the Members of the AGS by Steven Francis, Eversheds

Date of Issue: 19 December 2005