Global menu

Our global pages

Close

Expert Evidence – Law Reform Commission Recommendations

  • Ireland
  • General

08-05-2017

Experts play a crucial role in assisting parties engaged in a wide variety of disputes, including healthcare litigation. Given the important role played by experts, the Courts have regularly been asked to consider the question of what duties experts owe and to whom. Indeed such was the importance attached to role of an expert, that for centuries experts have enjoyed immunity from suit in many common law jurisdictions. However, more recently, the Courts in the UK have ruled that the traditional immunity from suit enjoyed by experts no longer exists in the UK. These issues have recently been considered in an Irish context by the Law Reform Commission in Ireland.

The Law Reform Commission’s Report published in January 2017 recommended that in order to avoid the risk that an expert may be seen as the “hired gun” of the party who engages him or her, the following 4 main duties of an expert witness should be set out in legislation:

  • an overriding duty to the court to provide truthful, independent and impartial expert evidence
  • a duty to state the facts and assumptions on which his or her evidence is based and to fully inform himself or herself of any fact that could detract from his or her
    evidence
  • a duty to confine his or her evidence to matters within the scope of his or her expertise 
  • a duty to his or her instructing party to act with due care, skill and diligence, including a duty to take reasonable care in drafting any written report.

The Report recommended that if an expert fails to comply with the 4 main duties identified above, a Court may rule inadmissible his or her evidence.

The Report also considered the recent case law from the UK in relation to the abolition of the traditional immunity from suit for experts. The Report accepted that the rationale for the immunity was difficult to justify and that it should be abolished, and replaced by a statutory provision that an expert could be sued if the evidence they provide is given in a grossly negligent manner, falling below the standard of care to be expected from that expert. This Law Reform Commission suggest this gross negligence test would adequately balance the desire to provide sufficient protections to experts so as not to discourage them while also recognising that where a party is wronged, they should have a remedy.

If this recommendation is accepted, it will represent a significant development in this jurisdiction and have wider implications for experts, who will likely require an additional layer of professional indemnity cover in respect of their work as an expert.

Disclaimer

This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.

< Go back

Print Friendly and PDF
Register to receive regular updates via email.