Ever since the Supreme Court abolished immunity from suit for breach of duty that expert witnesses had enjoyed in relation to their participation in legal proceedings prior to Jones v Kaney [2011] UKSC 13, there has been a risk that expert witnesses who are found to be in breach of that duty may be sued for costs and/or damages arising from that breach. In extreme cases, they can also find themselves on the receiving end of a third party costs order where they are ordered by the court to pay a party’s wasted costs arising from their breach of duty. That was the position in which Dr Chris Mercier, a general dental practitioner, found himself in the County court case of R-v-Liverpool-v-Mercier. Dr Mercier had been appointed by the claimant’s solicitor in a negligence claim against Liverpool University Hospital NHS Foundation Trust for alleged failures by a dental surgeon employed by the Trust. Dr Mercier’s evidence had clearly gone very badly which had resulted in the claimant withdrawing her claim.
It is apparent from the very first paragraph of Recorder Abigail Hudson’s judgment that Dr Mercier was going to be in for a hard time. The fact that he had blanked his computer screen at the stage in the proceedings when Recorder Hudson had granted the Trust’s application to seek a third party costs order against him and, unbeknownst to the court, was not listening to the proceedings having left to pick his son up from school, probably did not help.
After rehearsing his many failings, Recorder Hudson concluded that it was just for Dr Mercier to pay the Trust’s wasted costs and made a third party costs order against him of £50,543.85. In a further demonstration of her displeasure, she also observed “that a hard-working oral and maxillofacial surgeon was maligned in public and undoubtedly caused significant distress by the actions of Dr. Mercier”, although she said that was not part of her considerations.
Perhaps unsurprisingly, given the maligning in public and significant distress that had been caused to Dr Mercier by the actions of Recorder Hudson, he applied for and was granted permission to appeal her order to the High Court. In a noticeably balanced judgment, which commented on the fact that Recorder Hudson had expressed her views somewhat trenchantly in her judgment, Mr Justice Sweeting confirmed that a costs order against an expert should only be made in exceptional cases that involve a flagrant or reckless disregard of an expert’s duty to the court. He then went on to review the facts of the case and the evidence given by Dr Mercier and came to the conclusion that Recorder Hudson was wrong to conclude that Dr Mercier had stepped outside the boundary of his expertise. He concluded that it was not just to make a costs order against Dr Mercier and allowed the appeal. It is tempting to observe that Dr Mercier escaped by the skin of his teeth.
Although no doubt challenging for Dr Mercier, this case is a useful reminder that the flagrant or reckless disregard of an expert’s duty to the court is a high bar that turns on all the facts of the case and not on the level of irritation felt by the judge.
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