Professional sidelines

Expert witness work: the sideline your PI policy may never have been told about

In short: Surveyors, engineers, accountants, medics and other professionals who take expert witness instructions as a sideline are doing a distinct professional activity with its own liability profile. Since Jones v Kaney [2011] UKSC 13, expert witnesses no longer have immunity from suit in negligence. Whether an existing PI policy covers reports and testimony depends entirely on what the schedule describes — and many were bought online against a day-job label that never mentioned expert work. Add the disciplinary and costs exposures that attach to the role, and this is a sideline worth declaring properly.

A different activity wearing familiar clothes

Expert work feels like an extension of the day job — the same expertise, applied to a dispute instead of a project. Legally it is a different role. The expert’s overriding duty is to the court, not to the client who pays; the output is a formal report and, sometimes, cross-examined evidence; and the audience is a tribunal deciding a dispute in which large sums may turn on what the expert says. The exposures follow that shape, not the shape of ordinary practice.

The immunity is gone

For a long time experts were protected by immunity from claims arising from their evidence. That changed with Jones v Kaney [2011] UKSC 13, in which the Supreme Court removed expert witnesses’ immunity from suit in negligence. The practical consequence is straightforward: an instructing client who believes their expert’s report or testimony was negligently prepared — a concession wrongly made, an opinion outside the expert’s competence, a calculation done badly — can bring a claim, exactly as they could against any other professional adviser.

Does your existing PI actually respond?

This is the question most sideline experts have never asked. PI cover follows the description of business on the schedule. A policy bought against “building surveying” or “management accountancy” covers what those words cover; whether they stretch to expert reports and courtroom testimony varies by wording, and the time to find out is before an instruction, not during a claim. The clean answer is to have expert witness work expressly included in the described activities — usually straightforward once it is disclosed, and usually accompanied by sensible underwriting questions about the type and scale of instructions taken.

Beyond the negligence claim

Two further exposures attach to the role. First, discipline: an expert criticised by a judge may find the criticism referred to their professional body, with regulatory or disciplinary proceedings to answer — costly to defend even when successfully defended. Second, costs: in certain circumstances courts have power to make costs orders against an expert whose conduct of the role has caused wasted costs in the litigation. Neither of these arrives as a classic “claim” from a client, which is precisely why it matters what the policy says about defence costs, disciplinary proceedings and the boundaries of cover.

The claims-made wrinkle

PI operates on a claims-made basis: the policy answering a claim is the one in force when the claim is made, not when the report was written. Disputes and their aftermath run slowly, so an allegation about a report can surface years later — after the expert has retired from expert work, changed insurer, or let a sideline policy lapse. Continuity of cover with an adequate retroactive date, and run-off when expert work stops, are what keep the old reports protected. This is routine to arrange and painful to discover missing.

Declaring it well

Underwriters do not treat expert work as toxic — it is a recognised professional activity with a market. What they need is the true picture: the profession it grows out of, the proportion of income it represents, the forums involved, and whether instructions are party-appointed or single joint expert. Set out plainly, most sideline expert practices can be accommodated within a properly described PI programme; we won’t promise a market sight unseen, but the placement usually turns on disclosure rather than appetite.

FAQ

Does my existing PI policy cover expert witness work?

Only if it says so. Cover follows the described activities on the schedule, and “chartered surveyor” or “consulting engineer” does not automatically include preparing court reports and giving evidence. Some wordings include it, some are silent, some exclude it. The answer is in your policy, and it is worth knowing before the next instruction, not after.

Can I really be sued for my evidence?

Yes. In Jones v Kaney [2011] UKSC 13 the Supreme Court removed expert witnesses’ immunity from suit in negligence. An expert whose report or evidence falls below the standard of a reasonably competent expert can face a claim from their instructing client like any other professional.

What about disciplinary proceedings rather than a lawsuit?

A separate and real exposure. Criticism of an expert by a judge can be referred to the expert’s professional body, and defending disciplinary proceedings costs money and time even where the outcome is favourable. Whether a policy covers the defence costs of disciplinary proceedings arising from expert work is a specific question to put to the wording.

I only take one or two instructions a year. Is it worth declaring?

Yes. Severity, not frequency, is the issue — a single negligence claim arising from evidence in a substantial dispute can dwarf the fees earned. A sideline that is undeclared is not a small exposure; it is an unexamined one.

Does it matter that PI is claims-made?

Considerably. Litigation runs on long timescales, so a complaint about a report may arrive years after it was written. The policy in force when the claim arrives is the one that must respond, and it must carry a retroactive date reaching back over the work. Letting cover lapse after stopping expert work leaves the old reports exposed.

Taking expert witness instructions?

Tell us the day job, the volume of instructions and the forums involved. We’ll get the expert work expressly described and check the disciplinary and run-off angles.

Start your proposal → Call 0117 325 0027

Apex Insurance Brokers Limited is authorised and regulated by the Financial Conduct Authority (FRN 724952). This page is general information, not advice on a specific policy.