For a long time, in order to allow expert witnesses to dare to express their opinions freely in court, common law has granted expert witnesses a certain degree of immunity, so as to avoid the situation where the parties sue the expert witnesses for liability based on the reports made by the expert witnesses in court. However, with the development of society and different understandings of legal principles, the immunity of expert witnesses is gradually being withdrawn by the courts, in order to fully grasp the changes in the application of the immunity of expert witnesses in international commercial arbitration, I will analyze the rights, applicable conditions and exceptions, changes and withdrawals of special exemptions, etc., and conduct an in-depth interpretation and analysis of the immunity of expert witnesses that may often be involved in practice.
1. The right to immunity of expert witnesses**
Immunity of expert witnesses is applied to Cutler vDixon (1585) 4 Co Rep 14 Precedent, Stanton vCallaghan (2000) qb 75 and other precedents, from which it can be seen that the right to witness immunity** has been proposed for more than 400 years. In order to ensure that the witness can fearlessly disclose the truth or give professional opinions to the court or arbitral tribunal, there is no need to worry that his testimony will cause damage to the interests of the parties or a third party, or because of his mistakes, defamation or negligence in the court or arbitral tribunal, etc., which will cause the party to lose the case or sue him in another case. In addition, expert witnesses are generally among the best in the industry, and the absence of immunity will lead to their reluctance to participate in court hearings for fear of the risks of testifying, which will not help the review of the case. It is important to note that the immunity of expert witnesses does not extend to the conduct of investigation and evidence collection before **, but according to Raiss VPalmano (2001) PNLR 21 precedent, the immunity of an expert witness may be extended to work and conduct closely related to the presentation and cross-examination of evidence at trial, i.e., the immunity of a witness may be extended to the preparation of witness testimony or expert report. For example, in the pre-trial preparation stage, the writing of expert reports, etc. Therefore, if the witness is at fault or negligent in collecting and preparing materials before **, resulting in losses to the party, the court will generally not confirm the liability of the expert witness.
2. Conditions for the application of the immunity of expert witnesses
According to Darker vThe Chief Constable of West Midlands (2001) 1 AC 435 precedent establishes a rule that the immunity of expert witnesses is considered to be an absolute right that is not altered by any individual action. In this case, the expert witness Mr. Palmano fabricated his identity as an expert of the Royal Institute of Surveying Laboratories in the United Kingdom, which was exposed by the opposing lawyer during cross-examination, which led to the plaintiff's withdrawal of the lawsuit, and the plaintiff filed a lawsuit against the expert witness on this basis, arguing that his conduct was different from ordinary professional negligence or incompetence, and was suspected of fraud, but the Court of Appeal held that the immunity of the expert witness was an absolute right and ultimately did not support the plaintiff's claim. It can be seen that even if the expert witness deliberately gave false or dishonest testimony in a case, although he may still be required to bear the consequences of the relevant litigation costs, the court at that time obviously would not support the client's claim for any form of compensation against the expert witness based on the expert witness's immunity. Thus, for a long time, the immunity of expert witnesses was considered a protective measure to ensure and encourage honest and bona fide persons to better assist in judicial proceedings, even though in some cases the malicious intent and dishonesty of expert witnesses may cause a certain amount of unfairness, but the judicial community still considers the advantages to outweigh the disadvantages.
3. Exceptions to the immunity of expert witnesses
Although the immunity of expert witnesses is an absolute right, it does not mean that expert witnesses can do whatever they want, without any exceptions. According to Rondel VWorsley (1969) 1 ac 191 precedent, if there is conclusive evidence that the expert witness deliberately misled or deceived a court or arbitral tribunal, he may be guilty of a criminal offence of perjury or contempt of court. In addition, the relevant industry in which the expert witness works also has the right to impose disciplinary action on the basis of the dishonest behavior of the expert witness, which is also a major blow to the career of the expert witness. It should be noted that m(a minor) vThe Newham London Borough Council (1995)2 AC 633 precedent also makes it clear that when an expert witness is entrusted to give an advisory opinion, the act of trust is not closely related to the presentation of evidence and cross-examination at the trial, and therefore the mere sense of the advisory is not exempt.
IV. Changes and Withdrawal of the Immunity of Expert Witnesses
The immunity of expert witnesses was maintained for hundreds of years, up to Jones VKaney (2011) UKSC 13 precedent in which the Supreme Court withdrew the absolute immunity granted to expert witnesses by the common law by a final vote of 5:2. In addition, since expert witnesses and barristers are of equal status, both are assistants of the court and are professionals, and the previous withdrawal of the barrister's immunity did not occur as previously feared, it is clear that the immunity of the expert witness can also be withdrawn by reference to the treatment of the barrister's immunity. In addition, the officials also believe that in the current era of oversupply of expert witnesses, as professionals, they should be more cautious in their words and deeds, and fully demonstrate professional issues. The entry into force of this precedent directly started the revocation of the immunity of expert witnesses by local courts, and since then, a large number of cases have emerged requiring expert witnesses to bear liability for negligence and negligence, such as Riva Properties Limited vFoster Partners Limited (2017) EWHC 2574 (TCC) precedent, X vY (Delay: Professional Conduct of Experts) (2019) EWHC B9 (FAM) precedents, etc., all ultimately require expert witnesses to bear the unnecessary costs of the parties in litigation and arbitration. It should be noted that in practice, the immunity of only the parties unilaterally retaining expert witnesses has been withdrawn in the precedents, but for fact witnesses or expert witnesses appointed by the court and the other party, the previously applicable immunity should still be applied.
About the Author:
Lawyer Li Min, Doctor of International Law from East China University of Political Science and Law, Master of Laws in LLM in the UK, Senior Partner of Shanghai Hansheng Law Firm, Arbitrator of the London Court of International Arbitration, Arbitration Institute of the Stockholm Chamber of Commerce, Vienna International Arbitration Center and Mexico Arbitration Center, Independent Director Qualification of Listed Companies, Registered Information Privacy Expert (CIPP E) of the International Privacy Professional Association, Civil and Administrative Consulting Expert of the Supreme People's Procuratorate, Member of the Planning and Rules Committee of the Municipal Lawyers Association, Member of the Social Responsibility Promotion Committee, He is a member of the Internet and Information Technology Business Committee of the Municipal Lawyers Association, Secretary of the Pudong Lawyers Youth League Committee, Vice President of the Pudong Lawyers Youth Federation, one of the top ten outstanding young lawyers in Pudong, and one of the first batch of specially invited lawyer mediators of the Pudong Court.
Mr. Li specializes in major commercial dispute resolution and international arbitration, data compliance and cybersecurity, international** and M&A investment. In more than 10 years of legal work experience, Mr. Li Min has provided professional legal services for more than 30 units of large state-owned enterprise groups and private enterprises, multinational companies, overseas enterprises, local ** and industry associations, and his clients involve financial investment, international **, real estate, shipping and shipping, online games, e-commerce platforms, food and catering, medical equipment, cultural media, new energy vehicles and many other fields.
Mr. Li also has internship and work experience in Curwens Law Firm in the United Kingdom, has hundreds of well-known domestic litigation and arbitration cases, and has rich experience in foreign-related commercial arbitration cases in domestic and foreign arbitration institutions such as the Hong Kong International Arbitration Center, Shanghai Arbitration Commission, Shanghai International Arbitration Center, etc., and is familiar with various types of evidence discovery, witness cross-examination and other trial skills, and has been highly praised by clients for his professional and high-quality legal services and expected case results.
In addition, Mr. Li has also published a number of professional articles in CSSCI such as "China Circulation Economy" and "New Finance" and many core journals in China, and his practice deeds and current affairs commentary have been interviewed and reported by more than 70 newspapers and periodicals such as CCTV, Xinhua News Agency, and News Comprehensive. February** Dynamic Incentive ProgramDisclaimer: This article is for academic communication purposes only and is not intended as professional legal advice.