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06 MAR 2020

WASTED COSTS ORDER DUE TO EXPERT’S LACK OF COMPETENCE

James Burgoyne of Brunel Professions on court disapproval of claimant’s expert

A costs order of over £88,000 has been awarded against a claimant due to the lack of competence of their chosen expert.

The case was Thimmaya v Lancashire NHS Foundation Trust, and the expert in question was a consultant spinal surgeon. The defendant had sought the entirety of their costs, following the claimant’s case having been dismissed in 2019 due to the lack of credibility of the surgeon’s evidence.

This was a medical negligence case, but it has implications for any professional undertaking expert witness work, and negligence claims against professionals generally where expert witnesses are used.

Medical negligence decisions have often been relevant more widely to professional negligence claims, and indeed the test for professional breach of duty – the Bolam test – was formed in a clinical negligence case.

Interesting, that very Bolam test was one of the features of the present court order as the claimant’s expert could not properly articulate the test when asked in court.

This was only one of a series of shortcomings in the expert evidence. The court also criticised the expert’s report and expressed misgivings regarding the depth of the expert’s knowledge as he had only performed 2 of the relevant operations before.

The expert had been suffering from poor mental health, and cited his condition as having affected his cognitive and recall abilities. These issues had led to him discontinuing his clinical work in 2018, although not his medico-legal work. He also explained that the defendant’s counsel when questioning him, had reminded him of an interrogator and a questioning he had undergone whilst in Iraq. This had further affected his ability to answer the questions put to him.

The court, whilst recognising the adversarial aspect of cross examination, was not satisfied by these explanations. The judge observed that if an expert is not medically fit to provide evidence and satisfy their duty to the court, they should not continue their appointment: “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 due to his mental health problems. He should have taken sick leave from his medico-legal practice at the same time as he did from his clinical practice, in November 2017. As it was, he did not even inform the Claimant or her advisers of his medical condition.”

But the court did not stop there, observing:

“(He)...was not, on my reading of his reports and the file notes of the Claimant’s solicitors, a very good expert. Whilst he did not have a great deal of expertise in carrying out this
particular operation, having only done in twice (and then under supervision), he explained to the Claimant’s solicitors that he was able to give an opinion as he had treated a lot of patients recovering from this procedure. There are plenty of not very good experts around.”

In making the costs order, the judge clearly felt some tension between her dissatisfaction with what had happened, the desire to send a clear message to other expert witnesses for the future, and the nature of the order itself which is not intended to be punitive.

The judge was reminded by the claimant’s solicitor that the purpose of a costs order was not punitive, and the judge herself stated “There are plenty of cases where an expert gives an opinion where they are not particularly experienced in the operation concerned. Not all of those experts find themselves liable to pay wasted costs. The jurisdiction to make wasted costs orders is one to be exercised exceptionally.” and “I am not to fine (him) to mark the Court’s displeasure at his conduct.”

However she went on to say “But (he) owed important, and significant, duties to the Court. He failed comprehensively in those duties from November 2017 onwards. As a result, a public body has incurred significant unnecessary costs. Whilst it would not be right to use him as an example to send a message to experts, it is right that experts should all understand the importance of their duties to the Court and the potential consequences if they fail in them. The consequence for the Claimant was that she lost her entitlement to have her case tried on its merits. A considerable amount of court time has been wasted. And there were significant consequences to the NHS in terms of costs.”

The present decision is one of a number which emphasise that the duty of a claimant is to the court, and part and parcel of that duty is clearly a degree of professional competence and relevant experience which renders their evidence of use and value to the court.

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James  Burgoyne

James Burgoyne

Director - Claims & Technical

James joined Brunel in 2009 and heads up the Technical and Claims Department. As well as representing Brunel on the ACE PII panel, he writes occasional pieces for us on insurance, risk and associated topics.

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