Robinson v Mercier, Liverpool County Court [2021] 9 WLUK 400
The Court made a Third Party Costs Order (“TCPO”), in the sum of £50,543.85, pursuant to Part 46.2 and Part 46.8 CPR 1998 and Section 51 of the Senior Courts Act 1981, against Dr Mercier, General Dental Practitioner.
Dr Mercier acted as an expert witness for the Claimant in a case brought against Liverpool University Hospital NHS Trust (“the Trust”). Dr Mercier was critical of the actions of a Consultant Maxillofacial Surgeon employed by the Trust, specifically an extraction performed under general anaesthetic.
The sum of £50,543.85 represents the costs that were incurred by the Trust in defending the case, as a direct consequence of Dr Mercier’s advice.
Legal Background
Part 35.3(1) and (2) CPR 1998 makes it plain that “It is the duty of experts to help the Court on matters within their expertise” and that “this duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.” The Practice Direction to Part 35 reinforces this statement. Part 34.14 CPR 1998 enshrines the right of the expert to ask the Court for Directions for the purpose of assisting them in carrying out their functions.
In Philips v Symes (No 2) [2004] EWHC 2330 (Ch)Peter Smith J. stated at [95]: “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.”
An application for a TPCO is “exceptional.” However, the ultimate question to be addressed is whether, in all the circumstances, it is just to make an order, following the decisions of Symphony Group Plc v Hodgson [1994] QB179 and Dymocks Franchise Systems (NSW) v Todd (Costs) 2004 UKPC 39.
The trial
At trial, Dr Mercier conceded that he (i) did not have any experience of performing an extraction under general anaesthetic within the last 20 years; (ii) had no experience of consenting a patient for extraction under general anaesthetic; and, (iii) that he was not as well placed as the Defendant’s expert witness (a Consultant Maxillofacial Surgeon) to comment on the case. Dr Mercier had not worked in a hospital setting and he had not worked as a Maxillofacial Surgeon. The Claimant discontinued her claim following Dr Mercier’s evidence.
In her judgment, Ms Recorder Hudson concluded that “but for Dr Mercier’s report, this claim would not have been brought”. She concluded that Dr Mercier had shown 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 had no expertise [38]-4[9].
In addition, Ms Recorder Hudson rejected submissions on behalf of Dr Mercier that the Trust could in any way be criticised for having failed to take action itself to bring the point to the attention of Dr Mercier, his legal advisers, or the Court, before Trial.
Comment
This judgment is the second significant TCPO against an expert in clinical negligence litigation. Whilst in liability trials, it is inevitably the case that one opinion will be preferred over another opinion, that does not of itself imply any criticism on the part of the expert. Instead, it is part and parcel of the litigation process.
However, the present case ought to serve as an important reminder to experts that they must only accept instructions which fall strictly within their own area of expertise, both in terms of specialty, and in terms of contemporaneous practice. In particular, it is surprising that even today there are long since retired experts continuing to provide opinions in relation to events that have occurred many years after their time in clinical practice has ended.
Finally, all experts should be mindful that their duty to the court is an ongoing duty. Dr Mercier only made the key concessions under cross-examination at trial. It should have been obvious to Dr Mercier, at the outset, that he was not able to comment on whether a person exercising a wholly different role had made errors that could be deemed to be negligent. Instead, the Trust had been put to considerable expense in financing costly litigation that should not have been brought [51] – [53].
Giles Colin was instructed on behalf of the Trust by David Locke of Hill Dickinson LLP for the purposes of the TPCO only.
