Wasted Costs Arising from an Expert’s Breach of Duty

Thimmaya v Lancashire NHS Foundation Trust [2020] PNLR 12 

This article originally appeared in Issue 5 (May 2020).

An expert witness had failed to fulfil his duty to the court under CPR 35 to provide competent expert evidence and therefore a wasted costs order was made against him for the Defendant Trust’s costs from the date when the expert witness should have ceased to act, and the claim should have been abandoned. 

Background 

This claim for wasted costs arose from a clinical negligence case in which Mr Jamil (J), a consultant spinal surgeon, was instructed on behalf of the claimant (T). The clinical negligence claim proceeded to trial in the county court and J was called to give oral evidence in court in March 2019. During the course of cross-examination by counsel for the Trust, J “was wholly unable to articulate” the Bolam/Bolitho test for breach of duty to be applied in clinical negligence cases and admitted that he had only been involved in the type of surgery that gave rise to the index events on two occasions. Additionally, under cross-examination, it also emerged that J had been suffering from psychiatric difficulties which impaired his ability to give evidence and caused him to suspend his clinical practice from November 2017 before retiring completely in 2018. J had failed to give any notice of those matters to the court or the Claimant, however. T’s claim was abandoned as a result of J’s performance under cross examination, J being the only expert on whom she relied. 

The Trust sought to recover its costs of defending the claim brought by T on the basis that J had breached his duty to the court under CPR 35 to provide competent expert evidence and pursuant to the GMC Guidance on Good Medical Practice. 

Judgment 

HHJ Evans held that J’s inability to articulate the legal test for breach of duty was, on the balance of probabilities, because:

“he did not know, was unable to recall, or could not apply the legal test, perhaps because of his general cognitive difficulties caused by his mental health problems.”

Whether or not J knew the test, his psychiatric problems impaired his ability to perform as an expert and he should not have continued to act as an expert witness, whether in court or in writing or in conference, at a time when he was unable to work in his clinical practice as a result of his psychiatric difficulties. J should have taken sick-leave from his medico-legal practice at the same time as his clinical practice, but he failed to do so or even to inform T or her legal representatives of his condition. 

J’s failings amounted to “improper, unreasonable or negligent conduct.” Therefore the jurisdiction to make a costs order against him was engaged and the test was the same as that which applied to wasted costs orders against legal representatives under s51(6) of the Senior Courts Act 1981. 

Notwithstanding HHJ Evans’s view that J was not a very good expert (his reports were neither well written nor well argued) and that he did not have a great deal of expertise in carrying out the particular operation, she did not go on to find that J’s conduct and engagement were improper, unreasonable or negligent from the very outset of the case in order to justify making an order for costs against J on the basis that he should never have accepted the role of expert witness in the first place. She observed that there were “plenty of not very good experts around” and plenty of cases where experts give an opinion and they are not particularly experienced in the operation concerned. Those were not exceptional failings and the jurisdiction to make wasted costs orders is one to exercised exceptionally. 

In contrast, the fact that J continued to act as an expert witness after November 2017 (when his psychiatric difficulties caused him to suspend his clinical practice) was an exceptional failing. HHJ Evans rejected the submission on behalf of J that if J had ceased to act for T from that date another expert would have been instructed and the Trust would have been no better off. Whilst accepting that it was not her role to try the claim on its merits, HHJ Evans held that on the balance of probabilities T’s claim would be unlikely to succeed, no other expert would have supported the claim and the claim most likely would have been abandoned. 

Therefore, all of the Trust’s costs incurred after November 2017 had been incurred as a result of J’s breach of duty and would have been avoided. J was ordered to pay the Trust’s costs from November 2017 in the sum of £88,801.68 plus the Trust’s costs of the application. 

Comment 

Although HHJ Evans described this as an “unusual” case and acknowledged that there were many experts who were not very good, the 21 paragraphs of this brief judgment may make for some uncomfortable reading for expert witnesses. Experts owe clearly prescribed duties to the court under CPR Part 35. As HHJ Evans pointed out, these are important and significant duties and experts must all understand the importance of their duties to the court and the potential consequences if they fail in them. The “gateway” to the line of cross-examination as to J’s competence to give expert evidence in this case was the use of the phrase “best practice” in his joint statement with the Defendant’s expert witness. Whereas in some cases the use of such a phrase might simply be sloppy language, in J’s case it indicated a lack of understanding of the relevant test for breach of duty in clinical negligence claims, which may or may not have been caused by his psychiatric difficulties. 

Whilst HHJ Evans had sympathy for J and acknowledged that the jurisdiction to make wasted costs orders is not intended to be punitive or to mark the court’s displeasure at J’s conduct, a considerable amount of court time had been wasted and the balance came down firmly in favour of the Defendant Trust, a public body which had incurred significant unnecessary costs. J’s liability to pay costs would have significantly outweighed any fee that he would have received for his role as an expert witness in T’s case. 

More generally, legal representatives will no doubt also regard this judgment with interest and consider even more carefully the competence and suitability of medico-legal experts not only before instructing them but throughout the litigation process. HHJ Evans noted that, at various stages, counsel and solicitors for T were concerned as to whether J was a suitable expert and had gone so far as to ask him to confirm in 2017 that he was suitable to provide expert evidence. J did not inform them of his psychiatric difficulties, however. It is not entirely inconceivable that an application for wasted costs may also have been made against the legal representatives if they had not sought such confirmation or, having been told that J was no longer in clinical practice, continued to use him as an expert. 

Giles Colin from 1 Crown Office Row acted for the Defendant in this case. He did not contribute to this article.