28 February 2020
Warning for Experts
A recent judgement which ordered an expert witness to pay wasted costs of £89,000 should be a cautionary tale for experts and a reminder of their pre-eminent duties to the court and their professional regulatory body.
Our client, a consultant spinal surgeon, with a special interest in failed back surgery, was instructed by the Claimant and her solicitors in a claim for clinical negligence against a NHS Trust. The claimant issued proceedings in January 2016 and relied upon the expert’s evidence through to the trial in March 2019. Whilst engaged in the case, due to personal tragedy, the expert developed a marked psychiatric condition and was cognitively unable to engage in the process of cross examination at trial, such that he appeared unaware of the legal test to be applied in a clinical negligence action (the Bolam test). In the absence of supporting expert evidence, the claimant was thereby obliged to discontinue proceedings. The defendant Trust made an application for their costs to be paid in full by the claimant on the basis that the claim itself was an abuse of process. That application was dismissed by the Judge.
The defendant then pursued an application for wasted costs in excess of £200,000 against the claimant’s solicitors, made two failed applications against the claimant’s barrister and made an application against the expert personally. The defendant argued that the expert was inexperienced, incompetent, and he should not have been instructed, and/or should never have given expert evidence in this case. The defendant eventually withdrew its application for wasted costs against the claimant’s solicitors, but further argued that the expert should also be liable for its costs incurred in pursuing the claimant’s solicitors.
We argued the expert should not be liable to pay for all of the defendant’s costs incurred in defending the clinical negligence claim, nor the costs which it had incurred in pursuing the claimant’s solicitors for wasted costs. We argued that the expert had been fully and appropriately engaged as an expert at the outset, that he had all the appropriate and necessary knowledge, but that sadly due to significant mental health issues he was unable to participate fully as an expert witness under cross examination at trial.
What was the decision?
The Judge determined that this case was not about the general quality of the expert, his evidence, and/or whether or not he knew the Bolam test in other cases. The question to be determined in the defendant’s application for wasted costs, was whether at this trial the expert had a proper understanding of the test to be applied, which he did not. The Judge did not find that the expert’s conduct and engagement was improper, unreasonable, or negligent from the outset of his involvement in the claimant’s case, but the Judge did determine that he should have ceased acting as an expert in this case when he ceased his clinical duties.
The Judge found the circumstances in this case were exceptional, and determined the expert was liable for those of the defendant’s costs incurred after he had taken leave from his clinical post up to trial, and ordered him to pay the defendant £89,000, plus the defendant’s costs (to be assessed) in pursuing their application for wasted costs against him. The Judge however dismissed the defendant’s application for the expert to pay their costs incurred in pursing the claimant’s solicitor and barrister.
In this case the expert had an understandable desire at the time to assist the claimant by giving evidence. He failed to appreciate that he had become too unwell to continue. With our advice and support, he came to realise that this was a misplaced loyalty and subsequently appreciated the impact of his mental health condition. His primary responsibility was to ensure that he remained within his regulatory obligations as a clinician and his duties as an expert witness to the court.
The risks emerge both from the potential for a wasted costs application and a claim based on professional negligence. Both must be considered.
Throughout his medical career the expert held professional indemnity cover with the Medical Protection Society believing he was appropriately indemnified. However, MPS have since confirmed that its cover is discretionary and the expert was not in the correct grade of membership at the material time. It seems the expert misread a single letter which MPS sent to him several years ago towards the end of his professional career, about his professional indemnity cover – clearly, in retrospect, a highly costly mistake.
Checklist for experts
- Giving expert evidence comes with great responsibility and should not be considered a part time or tag on to your day job.
- Mental illness is still often an unspoken about subject. Even the most talented professionals can succumb to mental health issues. Stress and personal tragedy can lead to a psychiatric condition, which may not be immediately recognised. If depression or anxiety worsens, seek help, speak to someone.
- Your overriding obligation as an expert witness is to at all times to consider your ability to discharge your professional duties. Remind yourself of your duties to act as an expert witness under Part 35 of the Civil Procedure Rules. Remind yourself of your duties and the guidance issued to you by your professional regulatory body.
- Being ill is unlikely to be a successful defence to a negligence action against you if you continue to act as an expert witness, and fail to comply with your duties.
- Ask yourself, are you fit and ready for the potentially combative experience of giving evidence at court?
- Check and clarify that you have the appropriate level of professional indemnity cover to meet any professional negligence/wasted costs action against you.
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