A relief for Expert Witnesses?

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.