When the expert witness picks up the bill

Background

You will no doubt recall, from a previous article of mine, the lesson that Dr Zafar learnt for us all (Liverpool Victoria Insurance Co Ltd v Asef Zafar [2019] EWCA Civ 392) about the significance of signing the statement of truth at the end of a court medical report. That case resulted in the recent addition of words to the statement of truth (see paragraph 3.3 of the Practice Direction to Part 35 of the Civil Procedure Rules) to remind the expert of the consequences of a false statement of truth – imprisonment.

The more recent case of Walker v Tui UK Limited (14.01.21 Manchester County Court), is a useful consideration of the potential liability of an expert to pay the costs of the litigation if the conduct of the expert falls below a certain standard. 

Walker involved a claim by a couple against a holiday company for gastric illness while staying in a hotel. The court had ordered the instruction of a single joint expert (SJE), a consultant gastroenterologist. The expert was proposed by the claimant and was somewhat surprisingly accepted by the defendant, despite having been instructed on very many occasions by claimants in such claims and frequently as the expert against this defendant. Perhaps not surprisingly, the defendant was critical of the expert’s report and asked several Part 35 questions. Still concerned, particularly about the causation issues in the claim, the defendant arranged for the expert to be present at court for the trial, although without telling the expert why he was required at court and on what matters he might be required to give evidence.

The claims of Mr and Mrs Walker failed, the judge rejecting the evidence of Mrs Walker on causation and finding that Mr Walker’s illness may have been picked up from Mrs Walker. The judge was also critical of the medical expert (whose report showed greater familiarity with the requirements of a claimant’s report than that of an SJE).

Although successful in the claim, the defendant did not recover its costs because of the so-called QOCS rule (the provision that means that in a personal injury claim a successful defendant is not usually entitled to costs). The defendant then sought to recover its costs from the medical expert and applied to court for the expert to be joined to the proceedings in order for costs to be sought against him. The judgment of 14 January 2021 related to that application.

The judgment

The judge re-iterated the principles set out in Phillips v Symes [2004] EWHC 2330. To succeed in such an application, the test the applicant had to surmount is a high one and a high level of proof would be needed to establish gross dereliction of duty or recklessness. Only in cases where experts caused significant expense to be incurred and did so in flagrant and reckless disregard of their duties to the court would such an application succeed.

In the present case, criticism of the medical expert came nowhere near that level.  Further, there was no evidence that if it were not for the expert’s evidence the claimants would not have proceeded to trial, or that the SJE’s conduct had led to the incurring of significant expense.

Taking guidance from the case of Symphony Group Plc v Hodgson (1993), the principles in relation to seeking costs against an expert were summarised as follows:

• An order for payment of costs by a non-party (such as an expert witness) will always be exceptional so that the judge should treat any application for such an order with considerable caution.
• A party should warn the non-party at the earliest opportunity of the possibility that he may seek to apply for costs against him.
• The application for payment of costs by a non-party should normally be determined by the trial judge.
• The fact that the trial judge may in the course of his judgment in the action have expressed views on the conduct of the non-party constitutes neither bias nor the appearance of bias (which would require her to recuse herself from the hearing). Bias is the antithesis of the proper exercise of a judicial function. The trial judge will normally deal with the application.
• The procedure for the determination of costs is a summary procedure, not necessarily subject to all the rules that would apply in an action. For example, the judge’s findings of fact in the trial (his findings in relation to the evidence of the expert witness) are likely to be admissible on the application.
• Although the normal rule is that witnesses in proceedings enjoy immunity from any form of civil action in respect of evidence given during the proceedings, this rule does not apply in relation to such an application for costs.
• The judge should be alert to the possibility that an application against a non-party is motivated by resentment of an inability to obtain an effective order for costs against the losing party.

A further point arose 

The SJE had attended court at the request of the defendant. He was not told what the purpose of his attending was. He was not told that the defendant would apply to cross-examine him on his report or that he would be subjected to Part 35 questions and  those matters on which the defendant took issue, and he was not told what topics he would be questioned about in court.

The judge made it clear that the correct procedure to follow if, unusually, one party wished to cross-examine the SJE, was that the SJE ought to be informed that that was what was intended, what topics would be covered and what (if any) fresh material would be adduced in evidence.

Learning points

• There is a (perhaps natural) wish on the part of a successful defendant in a personal injury claim to seek to recover its costs from an expert witness if it succeeds in the face of the expert’s evidence, whether or not the expert is an SJE. Only in a substantially fraudulent claim is the defendant likely to recover costs from the claimant.
• However, only in exceptional circumstances will an expert witness be liable for costs.  The expert must have shown a flagrant and reckless disregard for the duties of an expert to the court.
• Before being subjected to such an order for costs, the expert must be joined to the action by an order of the court.
• The expert should notify insurers at the first suggestion that such action is being considered by one of the parties to the litigation.
• An SJE asked to attend court is entitled to know what is intended by that request, whether it is intended to cross-examine the expert, what topics will be covered and if it is intended to put in evidence any fresh material (and if so, what).

Next time:

Walker v Tui UK Limited also addressed some further issues of interest to the medical expert and court practice.

Giles Eyre is a retired barrister and an Associate Member of Chambers at 9 Gough Chambers, London, having practised for many years in the field of injury claims and at the interface of law and medicine.  He continues giving training and presenting workshops for experts on providing effective expert reports and evidence, and on medico-legal issues, in his own right and for training organisations.  He is co-author of Writing Medico-Legal Reports in Civil Claims – an essential guide (2nd edition 2015), and author of Clinical Practice and the Law – a legal primer (October 2018) both published and sold by Professional Solutions Publishing (www.prosols.co.uk) and through book retailers, and regularly writes articles on these subjects.  He blogs on issues relevant to court experts in civil claims at www.Medico-LegalMinder.net.

 Special Offer: ‘Clinical Practice and the Law – a legal primer’ (normal price £34.95) is available at £19.95 plus £4.95 p&p direct from the author by email to  geyre@9goughchambers.co.uk for a limited time.  (A retailer who normally sells at medical conferences has returned copies unsold because of the pandemic, and the offer remains while these stocks last!)  More information about the book and reviews are available at www.prosols.co.uk.