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Immunity From Suit for Experts?
The Law Reform Commission (the “LRC”) recently sought submissions on their Consultation Paper on Expert Evidence. A number of topics relating to expert witnesses were considered by the LRC, an important one being whether immunity from suit, which is currently afforded to expert witnesses in this jurisdiction, should be retained.
In Ireland, expert witnesses enjoy immunity from suit in relation to opinions given by them in the context of litigation. The rationale underpinning this rule is to ensure that experts give full and complete evidence, without a fear of liability. This was considered by the LRC as being particularly relevant in this jurisdiction, given the relatively small pool of local experts in any one field. The LRC suggested that anything which may discourage an individual from acting as an expert was to be avoided.
There has been no recent case law concerning experts’ immunity in this jurisdiction. However, in the case of Jones v Kaney, the Supreme Court of England and Wales, in abolishing immunity from civil liability for expert witness, considered there was no justification for the assumption that if an expert witness was liable to be sued for breach of duty, they would be discouraged from giving evidence. In fact, the Court commented that the quality of evidence might actually be improved by the removal of immunity. In light of the fact that such claims against experts would require the support of another expert, claims of a vexatious nature would be unlikely, and any claim would likely only arise as a result of the expert’s gross negligence.
Submissions are currently being considered by the LRC, and a final report is expected to be published by later this year. It remains to be seen what recommendations will be included in this report regarding immunity from suit for expert witnesses in this jurisdiction – should it be retained, or abolished?