In a warning to any expert wanting to act as an expert witness, Recorder Hudson recently found that a medical expert in a clinical negligence case had had such a “flagrant reckless disregard of his duty to the court” that he must be held liable for the defendant’s costs in the case.

In Robinson -v- Liverpool University Hospital NHS Foundation Trust & Dr Chris Mercier, the claimant Ms Robinson instructed Mr Mercier, a general dental practitioner, to act as her medical expert in a claim for the alleged negligence of an oral and maxillofacial surgeon at Aintree Hospital.

The Claimant alleged various acts of negligence/breaches of duty on behalf of the Defendant Trust however at the trial Dr Mercier conceded that the defendant’s medical expert, Mr Keith Webster, was “better placed” to “speak to the standards to be applied to the evidence of an oral and maxillofacial surgeon”. At the conclusion of Dr Mercier’s evidence the Claimant withdrew her claim.

The Defendant then decided to pursue a third party costs order in the sum of £52,056.57 against Dr Mercier as they argued that but for his reports and expert evidence provided on behalf of the claimant the case would not have been brought to trial. They submitted that Dr Mercier should not have been giving evidence in this case and he failed in his duty to the court to ensure that he was the appropriate expert to assist.

Recorder Hudson considered the law and under 46.2 and 46.8 CPR 1998 and Section 51 of the Senior Courts Act 1981, which allows the Court to make a Costs Order in favour of, or against, a non-party to proceedings. She also considered the following quote from Peter Smith J. in  Philips v Symes (No 2) [2004] EWHC 2330 (Ch):

 “It seems to me that in the administration of justice, especially, in spite of the clearly defined duties now enshrined in CPR 35 and PD 35, it would be quite wrong of the Court to remove from itself the power to make a costs order in appropriate against an Expert who, by his own evidence, causes significant expense to be incurred, and does so in flagrant reckless disregard of his duties to the Court.”

She commented that such an application is ‘exceptional’ and that the ultimate question is whether it is just to make such an order. She stated that “The Court has to be satisfied that the conduct of the person against whom the costs order is to be made is causative of the costs which have been incurred. If the costs would have been incurred in any event, then a s51 order must not be made.”

Ultimately she was satisfied of this. In her conclusion she said Dr Mercier “could have no way of knowing whether [the maxillofacial surgeon’s] examination was within the practice of a reasonable body of oral surgeons, or what such a surgeon would have done following such an examination because he does not have sufficient experience of that role.” Dr Mercier, a GDP, should have been aware when he received the instructions from the claimant that he was not able to comment on whether a surgeon had been negligent.

Further the Recorder formed the view that Dr. Mercier made no effort to assist the court and his evidence was “grossly unhelpful and wholly unreliable”.

She concluded that Dr Mercier was wholly unreasonable and negligent and showed “a flagrant reckless disregard for his duties to the Court and that he did so from the outset in preparing a report on a subject matter in which he has no expertise.” And but for this report the claim would not have been brought, therefore costs of £50,543.85 where awarded.

This Judgement should be seen as a warning, asHill Dickinson, acting for the defendant, stated: “It ought to serve as a further warning to experts that they must report strictly within their own area of expertise, both in terms of specialty and also having regard to their contemporaneous practice. As an expert your duty is to the court and you need to be honest if you cannot comment on a case because, as we see here if a case is pursued based on your negligent evidence you may be facing a wasted costs order.