11 Aug, 2011

Abolishment of Expert Witness Immunity Could Lead to Higher Insurance Premiums.


On 30th March the Supreme Court made a landmark decision in the Jones v Kaney case that effectively abolished the immunity previously afforded to expert witnesses. PI Expert gives their opinion on how this will affect the insurance world.


The law allowing expert witnesses immunity was originally established to ensure that expert witnesses would tell the truth in court trials. It was felt that it was in the public’s best interest for the expert witness to provide reliable evidence and that this would be compromised if a witness fears being sued by a party whose case is lost. By abolishing the rule, the courts are potentially allowing the very thing they once feared to become a reality.


Lord Phillips, the president of the Supreme Court, delivered the lead judgment of the majority. One of the reasons he gave for the abolishment of witness immunity was that most expert witnesses carry professional indemnity insurance (PII). Whilst this is true of some individuals it is by no means the case for all.


As a result, many more people will need cover and there is a far greater risk involved in insuring these individuals now that they are no longer guaranteed immunity. This will undoubtedly cause PII premiums to rise.


Jenny Carter-Vaughan, managing director of PI Expert, commented:

“It is also true that many expert witnesses are unaware of the technicalities involved with PII. Firstly cover needs to be in place not just when the work is carried out, but also later, when a claim is received, which in the example of a court can be many years. It is therefore imperative the expert witnesses retain their insurance cover for many years.”


Jenny continued: “Many individuals also do not purchase the full extent of cover they require. Often witnesses will buy insurance for their company and assume it cover this line of work, whereas unless the individual is specifically named as being covered in this capacity, many policies will not protect them.”


This decision by the courts could ultimately open up the floodgates for successful negligence claims being made against expert witnesses. If this happens it will impact on professional indemnity premiums as before now this has always been regarded as low risk activity; largely because of the immunity previously afforded.


Professional Indemnity Insurance covers a company against negligence or a mistake which causes a client’s business to suffer financial loss. A Professional Indemnity policy will protect a business from the financial consequences of claims arising from errors and omissions, negligence, bad advice, loss of data, breach of copyright, libel and slander as well as the cost of representation at disciplinary tribunals and award made by ombudsman.


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