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

Held

In her Judgment, Recorder Hudson stated that Dr Mercier could have no way of knowing whether the Maxillofacial surgeons examination was within the practice of a ‘reasonable body of oral surgeons’ because he has no experience in that role. She held that Mercier’s evidence was wholly unreliable, negligent and that it was inappropriatefor a GDP to be making such assertions. She concluded “ Dr Mercier has shown a flagrant reckless disregard for his duties to the Court and that he did so from the outset in preparing a report on subject matter in which he has no expertise.” She also noted that at no point did Dr Mercier refer to the relevant legal test, and felt that he did not understand it.

In relation to causation Recorder Hudson did not believe that another expert would have supported the claimants case and she was satisfied that but for Dr Mercier’s reports this claim would not have been brought to trial.  Therefore all of the defendant’s costs were caused by Dr Mercier’s “flagrant disregard for his duty to the court.”

Costs awarded against Dr Mercier in the sum of £50,543.85

Comments

This judgement should be seen as a warning to all expert witnesses, not only in clinical negligence cases but in any case, that the instructing party’s litigation is reliant on their advice and considerable expense may be incurred, based on their expert conclusions. There will always be a risk that the expert could be exposed to a cost liability if that advice is negligent.Experts must also remember that their duty is to the court and“this duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.” (Part 35.3(1) and (2) of the CPR 1998).

The full judgement can be found here:https://4alc5n2h7cjn2dmbej18mwl7-wpengine.netdna-ssl.com/london/wp-content/uploads/sites/2/2021/10/R-v-Liverpool-v-Mercier-Judgment.pdf

< Back to case list