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:
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.
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