Mann, P and Wong, D T W (2014) Is expert witness immunity from suit a thing of the past in construction law? In: Raiden, A and Aboagye-Nimo, E (eds.) Proceedings of 30th Annual ARCOM Conference, 1-3 September 2014, Portsmouth, UK.
Abstract
Is expert witness immunity from suit a thing of the past in construction law? This article explores whether immunity for expert witness should be abolished or not; whether there is a need to distinguish between immunity from suit from actions in negligence, and immunity from suit from actions in defamation. The analysis from case law shows that it is most likely that in the future, immunity will be largely curtailed. It may be considered just and fair for immunity from suit to remain a significant legal and moral obligation for expert witness in view of human rights and right to a fair trial, although we can see there is evidence of a change in the concept of immunity. It can be argued that parties should ensure they employ competent experts to give them appropriate advice, experts should be accountable for the evidence they provide for the court at trials, and immunity from suit should not be enjoyed by expert witness if Article 6 of the European Convention on Human Rights on the right to a fair trial cannot be upheld. Therefore, it is necessary for the courts to modernise their approach to this particular area of law, and to comply with Article 6 of the European Convention on Human Rights. However, it can be argued that if immunity from suit is removed, very few experts will be prepared to be an expert witness for fear of being liable for negligent evidence. In most circumstances, it would be challenging to please the clients as well as carrying out the overriding duty to the court simultaneously. It makes more sense for the expert witness immunity from suit to be maintained but establishing criteria for departures instead of granting blanket immunity.
| Item Type: | Conference Paper (Paper) |
|---|---|
| Uncontrolled Keywords: | construction law; expert witness; human rights; immunity |
| Index terms: | evidence, negligence, human rights, expert witness, duty, case law, construction law |
| Subjects: | practitioner, criminal law, construction law, evaluation and assessment methods, contractual role, liability law, legal systems |
| Topics: | Contract Administration, Legal Issues, Roles and Professions, Research Practice |
| Descriptive scope: | 3 PCA |
N.B. Descriptive scope is a count of how many of the five facets of empirical research are indicated by the words used in title, abstract and keywords. It is not intended as a judgement on the research; merely a count of the kind of word we would expect to indicate Phenomenon, Concepts, Theoretical framing, Empirical techniques, Analytical techniques. If all five are present, then a code of “5 PCTEA” will indicate this. If you feel the coding for this record is questionable, we welcome discussion around the terms we matched or the way we categorized them. The facet you would expect may not be coded, or a facet may be coded inappropriately. This can also bear on a larger question, of which facets should be treated as defining in construction management research. Please get in touch, and we will look at it. More details here