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Third Party Costs Orders and Experts: Order Restored
- Nov 9, 2023
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by Gareth Rhys - www.1corqmlr.com
Miss Martine Robinson v Liverpool University Hospitals NHS Trust v Mr Christopher Mercier  EWHC 21 (KB)
Sweeting J in the High Court allowed a medico-legal expert’s appeal against a Third Party Costs Order (“TPCO”) made against him. The TPCO had awarded the Defendant NHS Trust the full sum of the costs incurred by it in the defence of the action brought by the Claimant
Background to the appeal
QMLR reported on the County Court decision and TPCO here.
The Appellant medico-legal expert was a general dental practitioner (“the Expert”) who had acted as an expert witness for the Claimant, alleging negligence against the Defendant/Respondent NHS Trust. In particular, the claim was that the NHS Trust’s maxillofacial surgeon negligently failed to remove a molar whilst under general anaesthetic. The claim proceeded on the basis of the Claimant’s expert evidence.
During the trial the Expert made concessions as to his expertise. He conceded that he had never worked as a maxillofacial surgeon and was therefore less able to comment on the case than the Defendant’s expert, who was. He also conceded that he had not performed a dental extraction under general anaesthetic for over 20 years and lacked any experience consenting patients for general anaesthetic. After the evidence had been heard at trial, the Claimant withdrew her claim.
The NHS Trust sought a TPCO in the County Court pursuant to Part 46.2 and Part 46.8 CPR 1998 and Section 51 of the Senior Courts Act 1981 for £52,056.57 against the Expert, reflecting the total costs incurred by the NHS Trust in the defence of the claim. The NHS Trust made the application on the basis that the Expert should not have been giving evidence in this case at all and that he failed to comply with his duties to the Court as an expert witness. The application was granted by the Recorder, although she did note that “it is right to observe that making a Costs Order in these circumstances is set very high. Hence the use of the word ‘exceptional’ in the making of such a Wasted Costs Order” .
The High Court appeal
Sweeting J in the High Court overturned the order of the Recorder.
In his judgment, Sweeting J emphasised the high threshold test in Phillips v Symes  EWCH 2330 at  that a costs order may be made against an expert “in the event that his evidence is given recklessly in flagrant disregard for his duties”. The Judge recognised at  that the threshold for a TPCO is higher than the wasted costs order test in s51(6) of the Senior Courts Act 1981.
Sweeting J considered that the Recorder was wrong to conclude that the Expert, whose experience was in general dentistry, transgressed his area of expertise by commenting on breach and causation in this case. The Judge was content that general dental practitioners were able to assess the viability of teeth, which was the issue central to the decision not to extract the molar. The reason for the general anaesthetic was the Claimant’s fear of dental procedures, and the operation would otherwise have been carried out by a general dental practitioner. Consequently, the Expert did not have to be a maxillofacial surgeon in order to comment -. Furthermore, Sweeting J held that the Expert had been asked by the Claimant to identify breaches of duty, not to address failures in the conduct of the operation specifically .
In his conclusion, the Judge reiterated that this was not an exceptional case and did not involve a flagrant or reckless disregard of an expert’s duty to the court . The appeal was allowed and no costs whatsoever were ordered against the Expert.
Before the judgment of Sweeting J in the High Court, this case represented the second significant TPCO awarded against a medico-legal expert in clinical negligence proceedings (the first being Thimmaya v Lancashire NHS Foundation Trust 1 WLUK 437, covered here, which was referred to by the Recorder in her judgment at ).
This decision should dispel some of the anxiety felt among medico-legal experts caused by the TPCO and the Recorder’s judgment. The author of QMLR’s article on the Recorder’s judgment commented that “the present case ought to serve as an important reminder to experts that they must only accept instructions which fall strictly within their own area of expertise, both in terms of specialty, and in terms of contemporaneous practice”. It appears that, following this judgment of the High Court, any such reminder is (re)confined to exceptional cases involving a flagrant or reckless disregard of an expert’s duty to the court. The Court’s discretion to award TPCOs against experts in clinical negligence cases is restricted to cases surmounting that high threshold.
Giles Colin appeared for the Respondent, Liverpool University Hospitals NHS Trust. He did not contribute to this article, although he reported for QMLR on the case at first instance.
This article was originally published in 1COR’s QMLR (www.1corqmlr.com) and is republished here with permission.