Is it within the remit of an expert to decide which witness of fact they believe or... Is it within the remit of an expert to decide which witness of fact they believe or...

Is it within the remit of an expert to decide which witness of fact they believe or...

The judge noted that the expert readily accepted that integral to his reasoning was that he did not believe the claimant as to the symptoms he had...
Procedure for Determining Mental Capacity in Civil Proceedings Procedure for Determining Mental Capacity in Civil Proceedings

Procedure for Determining Mental Capacity in Civil Proceedings

A Civil Justice Council working group has published a report setting out recommendations for the development of a procedure for determing mental...
When the joint statement is no more than really two statements, one from each expert. When the joint statement is no more than really two statements, one from each expert.

When the joint statement is no more than really two statements, one from each expert.

The 'joint statement' prepared by two blockchain experts was really two statements, one from each expert. Fabrizio D'Aloia v Persons...
Podcast Episode 6: In Conversation with Giles Eyre Podcast Episode 6: In Conversation with Giles Eyre

Podcast Episode 6: In Conversation with Giles Eyre

In the 6th Episode of Expert Matters Podcast, Simon talks with retired Barrister and expert witness trainer, Giles Eyre, who is retiring as an EWI...
The dangers of a considerable burden of expert work The dangers of a considerable burden of expert work

The dangers of a considerable burden of expert work

The court found that a highly respected and hugely experienced histopathologist expert wtiness, who was overburdened with work, had made errors in his...
A Day in the Life of a Medicolegal Expert Witness A Day in the Life of a Medicolegal Expert Witness

A Day in the Life of a Medicolegal Expert Witness

Sue Lightman is a Professor of Ophthalmology and Consultant Ophthalmologist who has been undertaking medicolegal Expert Witness work for over 20...
Thomas Murray Joins EWI as a Corporate Partner Thomas Murray Joins EWI as a Corporate Partner

Thomas Murray Joins EWI as a Corporate Partner

We are pleased to welcome a new Corporate Partner
Celebrating Success at the Sir Michael Davies Lecture Celebrating Success at the Sir Michael Davies Lecture

Celebrating Success at the Sir Michael Davies Lecture

Successful Certification candidates receive their certificate from Lord Hodge.
Podcast Episode 5: Range of Opinion Podcast Episode 5: Range of Opinion

Podcast Episode 5: Range of Opinion

Range of Opinion is the focus of the 5th episode of the Expert Matters Podcast. We catch up with Colin Holburn, Chair of the EWI Membership Committee,...
A Day in the Life of a Water Quality Expert A Day in the Life of a Water Quality Expert

A Day in the Life of a Water Quality Expert

Tim White is a chartered chemist who uses his expertise to assess chemical risk from exposure to water. He has been an Expert Witness for over 40...
Podcast Episode 4: Expert Fees Podcast Episode 4: Expert Fees

Podcast Episode 4: Expert Fees

Simon and Sean discuss expert fees and catch up with Dominic Woodhouse from Partners in Costs to talk about cost management and budgeting in civil...
A Day in the Life of a Fitted Kitchen and Bathroom Expert A Day in the Life of a Fitted Kitchen and Bathroom Expert

A Day in the Life of a Fitted Kitchen and Bathroom Expert

Jerry Ponder uses his 40+ years of experience in fitted interiors to provide expert evidence on the design, product quality, installation and project...

Check out our Case Updates and Member Magazine

Looking for more news relevant to the Expert Witness community? Why not check out our database of cases relevant to Expert Evidence or the latest and previous editions of our member magazine, Expert Matters.

News

Clicking on one of the topics below will display news items relevant to that topic. You can also use the search bar below to identify news items.

A relief for Expert Witnesses?
Simon Berney-Edwards 987

A relief for Expert Witnesses?

bySimon Berney-Edwards

This article is reproduced with kind permission from Nikki Green, Solicitor & Simon Perkins, Partner - DAC Beechcroft

 

Third party costs order against an expert witness set aside on appeal: being able to criticise an expert’s opinion does not amount to a flagrant disregard of their duty

 

A recent Court of Appeal decision will come as a relief to expert witnesses, and their professional indemnity insurers. In Robinson v Liverpool Hospitals NHS Trust and Mercier [2023] EWHC 21 (KB), Mr Justice Sweeting clarified the situations in which a third party costs order (TPCO) could be made against an expert witness. He made it very clear that such an order would only be justified where an expert gave his evidence ”in flagrant reckless disregard of his duties to the Court” [95].

 

The primary claim

In the underlying medical negligence claim, the Claimant pursued a claim against the Defendant Trust arising out of alleged negligent dental treatment. The Claimant obtained a report from Mr Mercier in support of her claim and allegations against the Defendant.

 

Mr Mercier was a general dental practitioner, and the Claimant had been treated by a dental surgeon.

 

The matter proceeded to Trial, however the Claimant discontinued her claim following Mr Mercier (the Claimant’s expert) giving evidence.

 

The Defendant Trust then applied for a wasted third party costs order (TPCO) against Mr Mercier on the basis that, had he, as he should have done, not agreed to act in this case (not being the relevant specialism to do so), then no case for negligence would have been pursued. In that case, the Defendant Trust would not have incurred the costs of defending the case. The trial judge allowed the application on this basis, and held that Mr Mercier should be liable for the entire sum in which the Defendant’s cost budget had been assessed.  This decision was appealed.

 

Court of Appeal Decision

The Defendant Trust’s application was based on the heavy criticism given by the trial judge against Mr Mercier. In the primary claim, the trial judge concluded that Mr Mercier had ‘demonstrated a flagrant, reckless disregard of his duty to the court’. The basis for this conclusion was that the trial judge did not think Mr Mercier was qualified to give an opinion in respect of breach of duty, not being the correct specialism to do so, as a dentist rather than a dental surgeon. The application was submitted on this basis, with the Defendant Trust stating that Mr Mercier was the wrong expert to give expert evidence and that he should have appreciated that, either at the outset or during the course of litigation.

 

Mr Mercier appealed that application, and the appeal was successful.

 

Mr Justice Sweeting, in allowing the appeal, concluded that Mr Mercier was qualified to give evidence in the primary case. He said that the relevant question was whether Mr Mercier had the expertise to comment on the issues in this case, which Mr Justice Sweeting concluded that he did. The main issue was whether the pre-surgery examination was adequate. Mr Justice Sweeting was of the opinion that there could be no sensible suggestion that any different standard applied to the examination of the patient’s teeth and the x-rays to confirm which required extraction as between a dental surgeon and a general practitioner. Essentially, an expert’s ability to comment on a case should not be determined solely on his title, but rather with reference to the issues in question and whether the expert has the expertise and experience to comment on those issues.

 

He concluded that the trial judge’s findings that Mr Mercier had stepped outside the boundary of his expertise in giving his opinion was wrong. Mr Mercier, as a general dental practitioner was, he said qualified to give an opinion in relation to the viability of a tooth and whether its condition was such that it required extraction. Mr Justice Sweeting’s overall conclusion was that ‘there may well have been grounds to criticise Mr Mercier’s performance as an expert witness and to attack his conclusions, but this was not an exceptional case and did not involve a flagrant or reckless disregard of an expert’s duty to the court. On the facts of this case it would not be just to make a costs order against him in any amount. The appeal is therefore allowed [69].’

 

The above clearly confirms that there is a high threshold to meet in order to successful obtain a TPCO against an expert witness, which will come as a relief to many experts and their insurers, but possibly not to those instructing them. In short, an unsatisfactory expert witness won’t make the cut for such an order. The take away is that for an exert to be successfully held liable to a TPCO, the applicant must show that:-

 

The expert acted “in flagrant reckless disregard of his duties to the Court”, as set out by Mr Justice Peter Smith in Phillips v Symes [2004] EWHC 2330.

 

This is a high threshold that will not be easily met, and the scope is to be assessed with reference to the expert’s experience and the issues in question, rather just than by title comparison with the treating clinician.

Share

Print
Comments are only visible to subscribers.