The inevitability of greater regulation: what does the future hold for experts?

The Bond Solon’s 2025 Expert Witness Survey

Bond Solon recently released the results of its ‘2025 Expert Witness Survey’, which provides invaluable insight into the views of the profession. 

Among the interesting findings, what was perhaps most headline grabbing was the fact that only 59% of those surveyed were in favour of greater regulation, meaning 41% were opposed. 

For those of us who operate in the professional regulatory/disciplinary space this is not that surprising and we have seen similar reactions from other nascent professions who have been on a regulatory journey. Whilst no doubt the reasons for those on either side will be various, we would not be surprised if factors influencing those who are against greater regulation include:

• the question over what training and qualification requirements would mean in practice and would that limit the scope of experts’ ability to act in certain fields / types of work
• the worry that formal regulation would impose onerous reporting obligations
• the potential for external auditing and procedural requirements which may be disproportionate to the size of operations
• the fear that regulation would make experts subject to disciplinary proceedings
• the concern that such requirements may operate to impinge on the independence of their methodology
• the possibility of higher insurance premiums.

Regulation would no doubt impose greater standards, procedural requirements or codes of practice which some see as limiting professional judgement which is particularly important for experts for whom this is the cornerstone of their profession.

We would also imagine that whilst the larger expert outfits would be less concerned with these changes (many will already have the necessary processes and procedures in place) the many experts who still operate as sole trader or small partnerships will see this as a much greater threat. That would not be unfounded, and indeed where in other professions we have seen the imposition of greater regulation, contraction of the market tends to follow. 

The natural next step?

If greater regulation for experts does come however, it would not be a ‘bolt out of the blue’, but rather an unsurprising evolution of the profession.

In 2011, Jones v Kaney 2011 UKSC 13 abolished the long-standing immunity experts enjoyed against negligence actions for their preparatory work and evidence. The decision reinforced the professional obligations of expert witnesses and underscored that whilst an expert’s paramount duty is to the court, this does not negate the professional duty of care owed to the instructing party. A watershed moment for the profession, this naturally led to experts needing to hold proper professional indemnity in place, and shifted the dial on their relationship with their client and instructing solicitors. For insurers, this also of course birthed a new market.

Whilst the position has since then largely — at least formally — not changed, in our experience there has been a ‘professionalising’ of the regulation and indeed certainly the way the larger outfits conduct themselves and run their businesses is some far way from what used to be the case.

Whilst not hugely reported, the dial recently shifted again when in JSC Commercial Bank PrivatBank v Kolomoisky and others [2025] EWHC 1987 (Ch) the court held that experts have a duty to disclose previous criticisms of their evidence to the Court and that failing to do so can amount to a breach of an expert’s duty. This breach does not mean that an expert’s evidence should be disregarded completely, instead it should be subject to a higher level of scrutiny. Why is this so important?

Other than the obvious practical implications for experts who have been criticised, what this judgment means at a higher level is that an expert now has a status or standing that outlasts any particular instruction.  Just like with lawyers, an expert’s reputation therefore now not only impacts the ability to attract work, but the value of the contribution. Whilst perhaps always the case to some extent, this shift — we would suggest — very much paves the way for greater regulation. The role of regulators of course being very much to govern the standing and practice of individuals, groups of individuals and professions generally, and outside of any particular case.

Questions for professional indemnity insurers

There are — so far as we aware — no immediate plans, but this is something that professional indemnity insurers with ‘skin in the game’ in the expert field should keep a close eye on. 

Greater regulation will necessarily mean greater scrutiny and experience would suggest that ultimately that reduces the risk for insurers as claims tend to reduce (albeit disciplinary actions increase). Initially thought, this is quite possibly a double-edged sword as whilst ultimately regulation can make the professional a less risky business to write (and in theory therefore increasing the commercial opportunity for insurers), getting to that point is always a journey, and those journeys can be the riskiest moments for a profession, and by implication insurers.

Insurers in this space will no doubt therefore want to reflect on their medium to long term appetite in this space, and we would imagine that those who want to get ahead will start considering whether for example: 

• there are additional questions they might want to include in their prop forms going forwards about experts’ practices and procedures / what steps they are taking to prepare should greater regulation come
• what premiums insurers might ultimately need to charge, and what the increase journey looks like over the coming years to get there
• what cover they want to provide for disciplinary investigation/action and whether — for example — they want to consider writing in point lawyers into policies to ensure that complaints are effectively managed
• whether there is scope to work with brokers and/or lawyers operating in this space to offer ways of working with insureds / potential insureds to help get them ready and therefore set themselves apart. 

We will be watching these developments carefully, and would be delighted to discuss this further with any insurers looking to consider their position.