Background

Ms. Robinson, the claimant, brought a claim for dental negligence against the Defendant hospital trust for treatment provided by a maxillofacial surgeon at Aintree Hospital. Dr Mercier, A General Dental Practitioner, gave expert evidence on behalf of the claimant. After the expert evidence was heard the Claimant withdrew her claim, as Dr Mercier conceded that he was not as well placed as the defendant’s expert witness – a consultant maxillofacial surgeon – to comment on the case. Mr Maddison, for the Defendant trust, then pursued a costs order against Dr Mercier in light of the evidence he had provided.

The Issues

The Defendant trust submitted that Dr Mercier:

                a) should not have been giving evidence in this case, at all; and,

                b) had an ongoing, and continuing, duty to the Court to ensure that he was the appropriate  
                expert to assist the Court which he patently failed to abide by.

They also argued that the costs incurred from the outset of proceedings would have been avoided but for the conduct of Dr Mercier and “…the claimant’s case in relation to  Breach of Duty and Causation rested solely on his expert evidence.”

Dr Mercier argued that he is qualified to give expert evidence on this case and he, at all times, acted properly and consistently with his duty.

Under Section 51 of the Senior courts Act 1981 and part 46.2 and 46.8 CPR 1998 the Court can make third party costs orders in favour of or against non-parties. This can and does included medical experts. However, the Court does need to be certain that the third parties actions directly caused the costs to be incurred, as if the case would have continued without that party and the costs incurred in any event then a s51 order cannot be made.

Mr. Maddison asserted that it should have been obvious to Dr Mercier when he first received the instructions from the claimant that he was not the appropriate expert to critique the treatment and standard of care given by a Maxillofacial Surgeon, as a General Dental practitioner.  He raised the following concessions made by Dr Mercier:

1. he had had no experience of surgical removal of teeth under General Anaesthetic since 2000
2.  he had no experience of consenting patients for the extraction of a tooth/teeth under General Anaesthetic and,
3. he conceded that the defendants expert, as a Maxillofacial Surgeon working in a Hospital, was “better placed” to give expert evidence in the case