Test for joining expert witness as defendant for purposes of costs “a high one”

The test for joining an expert witness as a defendant for the purposes of costs is a high one and more demanding than that for making a wasted costs order, a court has ruled.

Having sifted through the case law, District Judge Obodai in Manchester identified Mr Justice Peter Smith’s ruling in Phillips and others v Symes and others (No2) [2004] EWHC 2330 (Ch) as “the only authoritative guidance concerning the expert’s conduct in the giving of evidence and the potential consequential cost consequences”.

Peter Smith J said: “It seems to me that in the administration of justice, especially, in the light of the clearly defined duties now enshrined in CPR part 35 and the practice direction supplementing part 35, it would be quite wrong of the court to remove from itself the power to make a costs order in appropriate circumstances against an expert who, by his evidence, causes significant expense to be incurred, and does so in flagrant reckless disregard of his duties to the court.”

The case of Walker & Anr v TUI concerned a couple’s holiday sickness claim. Dr Tim Leigh was appointed as a single joint consultant gastroenterologist.

His evidence was that Mr Walker’s gastroenteritis could, on the balance of probabilities, have been caused either by food and drink consumed at the hotel or from having close contact with Mrs Walker, who it was said, was ill first.

His claim therefore failed and DJ Obodai also found on the balance of probabilities that Mrs Walker did not fall ill as alleged. She nonetheless went on to criticise aspects of Dr Leigh’s evidence.

At the handing down of the judgment, TUI sought to add him as a defendant for the purposes of costs under CPR 46.2.

DJ Obodai said one of the reasons for her decision in relation to the threshold test was that “there must be a difference when considering section 51 costs against a part 35 expert as against, for example, a funder or someone else who stands to gain from proceedings”.

An expert was in a different position to a lawyer, she went on, meaning the threshold “must be higher than that for a wasted costs order”.

The judge said the claimants lost primarily because she did not accept their evidence. Despite the criticism she made of his evidence, “I cannot see, based on the evidence the defendant has produced in support of its application, that what Dr Leigh did by giving his evidence caused significant expense to be incurred in flagrant disregard of his duties to the court”.

She continued that Dr Leigh should have received advanced warning from TUI of its application. “In Philips v Symes, Smith J referred to the Symphony case where the court had emphasised the need for a warning. Smith J went on to say that giving a warning was not an absolute requirement but one that ought to be considered on a case-by-case basis.

“I have concluded that on the facts of this case, particularly as he was a single joint expert, Dr Leigh should have been warned and the court should have been made aware of the proper procedure at the time when Mr Boyle sought an order to join Dr Leigh in following the handing down of judgment.”

The judge questioned the criticisms TUI made of him in the application, which said that Dr Leigh was not actually an expert and had supported over a hundred similar cases.

“It was rather a curious decision for the defendant, knowing as it did that Dr Leigh had prepared numerous reports for claimants in these types of cases, to agree that he should be instructed as an SJE. There has been no proper and/or satisfactory explanation from the defendant.

“That being the case, the court is entitled to form and does form the view that the defendant did so to have an opportunity, to make such an application against him.”

Colm Nugent, a barrister at Hardwicke who represented Dr Leigh, said: “The case provides valuable guidance for anyone contemplating such an application or those affected by it as to the threshold test, the correct procedure and the necessary evidence.

“As a consequence of this decision, it has been recognised that expert witnesses are not to be treated the same as third-party funders, directors or even solicitors in considering whether a third-party costs order is appropriate.”

He was instructed by Reynolds Porter Chamberlain. Sebastian Clegg (instructed by Kennedys) represented the defendant.

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Costs News
Published date
04 Mar 2021

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