Risk & Compliance Update: Experts – limitations of liability and indemnities

Prior to Jones v Kaney [2011] UKSC 13, expert witnesses enjoyed a partial immunity from negligence actions. That case established for the first time that expert witnesses can be sued if they provide negligent advice. Since then, some experts have sought to limit their liability and / or include indemnities within their terms of engagement.

We understand that the Academy of Experts’ template engagement letter includes a limitation of liability of 3x the value of the expert’s fees.

What does this mean for you?

With that in mind, before instructing an expert, you should check the terms of their engagement and if they include a limitation on liability or a request for an indemnity from us you should consider whether it is still appropriate to instruct the expert or whether it would be better to instruct an expert with no such limitations on their liability, or indemnity clause in relation to claims from third parties; or alternatively re-negotiate the terms of the engagement to agree a level of liability which is appropriate to the particular case.

If relevant, you should ensure the client is aware of and understands the limitations of liability and is nevertheless content to instruct the expert and if there are any doubts, you should discuss this issue with your supervisor.


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