Defendant’s costs paid by Claimant’s expert

In the clinical negligence case of Thimmaya v Lancashire NHS Foundation Trust v Jamil (Manchester County Court 30 January 2020), HHJ Evans ordered that the Claimant’s expert should pay part of the Defendant’s costs. It had become apparent in cross examination of the expert that he was “wholly unable to articulate the test to be applied in determining breach of duty in a clinical negligence case”, leading the Claimant with no option but to discontinue her claim. This cross examination followed the expert having referred to “best practice” in a joint statement.

The Defendant made an application for a third party costs order relying not just on the expert’s lack of understanding of the test for breach of duty, but also his lack of experience in the relevant surgical procedure and his psychiatric difficulties which led him to retire from clinical work the year before the trial. The Defendant therefore asserted that he should never have been acting as an expert witness and sought the entire costs of defending the claim from him.

In considering the Defendant’s application for a third party costs order against the expert, HHJ Evans applied the following principles:

• It was common ground that the test to be applied was essentially the same as that in an application for a wasted costs order. The judge found that the expert should not have continued his medico-legal work at a time when his psychiatric difficulties had forced him to take sick leave and then retirement from his clinical work. Further, he should not have given evidence when he was suffering from psychiatric problems and cognitive problems such that he was unable to concentrate and unable to engage properly with cross-examination. In her judgment the expert’s failings amounted to improper, unreasonable or negligent conduct.
• The jurisdiction to make a wasted costs order should only be exercised exceptionally. The judge considered whether the expert should have agreed to act in the first place. She found that on her reading of his reports and the Claimant’s solicitors file notes (detailing their own enquiries into the expert’s competence to act), the expert was not a very good expert. However, she noted that there are “plenty of not very good experts around” and plenty of experts who give evidence in relation to operations of which they do not have much experience. Not all such experts will find themselves liable for wasted costs. She did not, therefore, find the expert’s conduct to be improper, unreasonable or negligent before November 2017, being the date at which he took sick leave from clinical practice.
• The judge then had to consider whether this conduct had caused the Defendant to incur costs. It was argued on the expert’s behalf that the Claimant would simply have instructed another expert had he ceased acting, but the judge noted that she had no evidence that any other expert would have supported the Claimant’s claim which, on the judge’s initial reading of the bundle seemed unlikely to succeed. While she was not trying the merits of the claim, the judge found that on the balance of probabilities the conduct of the expert in continuing to act after November 2017 did cause the Defendant to incur all of its costs from this date.
• The judge then had to consider all the circumstances of the case and whether it was just to make the order sought. She accepted that the wasted costs jurisdiction is not punitive, and the purpose was not to fine the expert nor to make an example of him. However, the expert had failed in his duty to the court and caused a public body to incur significant unnecessary costs. Further, the Claimant lost her entitlement to have her claim tried on its merits. The judge sympathised with the expert who clearly had had personal and psychiatric difficulties, but held that the balance came down in favour of the Defendant.

HHJ Evans was careful to stress the exceptional nature of the jurisdiction. It will not assist parties in every case involving the “plenty of not very good experts” they encounter. However, in appropriate cases, the court’s power to make third party cost orders is a useful tool for Defendants who incur significant unnecessary costs which they would otherwise be unable to recover from a (potentially blameless) Claimant with the benefit of QOCs protection.