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?
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