CLAIMANT’S MEDICAL EXPERT ORDERED TO PAY DEFENDANT’S COSTS: EXPERTS PLEASE NOTE (EXPERTS’ INSURERS NOTE CAREFULLY)

In Thimmaya -v- Lancashire NHS Foundation Trust (30th January 2020, Manchester County Court) HHJ Claire Evans ordered that a medical expert pay a significant part of the defendant’s costs when she found that the expert had failed in his duties to the court. In this case by stating that conduct had been negligent in circumstances when he could not state what the appropriate test for negligence was.

Thimmaya-v-Lancashire-NHS-Trust-Foundation-v-Mr-Jamil-Approved-Judgment

 

“… 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 CASE

The claimant brought an action for clinical negligence against the defendant. She relied on the expert evidence of a Mr Jamil.  The case failed.  The judge was not happy that the claimant’s expert understood the relevant test.  The defendant applied for a third party costs order.

THE JUDGE’S CONCERN ABOUT THE EXPERT’S CONDUCT

The judge set out the reasons for her concern.

“It arises because in the course of being cross-examined at the trial before me in Preston
on 11th and 12th March 2019, Mr Jamil was wholly unable to articulate the test to be
applied in determining breach of duty in a clinical negligence case. He was given a
number of opportunities to explain it; he was asked the question in different ways; that
did not assist him. In the end, he stated that he did not know the test to be applied. The
Claimant then had no real choice but to discontinue her claim, he being the only expert
upon whom she relied.”

THE JUDGE’S CONCLUSIONS

The judgment sets out the fact that the judge was only concerned with this particular case.

The gateway to it unfolding that Mr Jamil was not aware of the test for breach of duty
arose from his choice of wording in the Joint Statement he prepared with Mr Allibone,
Consultation Orthopaedic Surgeon instructed by the Defendant, in May 2018. Mr Jamil
referred in the joint statement to “best practice”. Of course, best practice is not what is
required of a doctor so as to avoid being found to have been negligent.
8. Mr Jamil may well have been able to report having proper regard to the Bolam/Bolitho
test in previous cases. He may well have understood the test and been able to fulfil his
duty to the Court in previous cases. This is not a case about what Mr Jamil has, or has
not, done before. The question for me is whether in this particular claim, at the relevant
times, he had a proper understanding of the test to be applied in giving an opinion as to
whether a clinician had been negligent. And plainly by the time of the trial he did not.

THE CONSEQUENCE: THE DOCTOR PAYS THE COSTS

The judge concluded that the expert should be ordered to pay the costs, on grounds akin to wasted costs orders.

“Those are all significant failings which amount in my judgment to improper,
unreasonable, or negligent conduct, such that the jurisdiction to make a costs order
against Mr Jamil (which is, both parties agree, essentially to be exercised on the same
basis as a wasted costs order) is engaged.”

CAUSATION AND COSTS

The judge then considered issues relating to causation and found that considerable costs had been incurred from the time that the expert should have ceased acting.

14. I must also consider whether Mr Jamil should have agreed to act as an expert at all in
this case, and the content of his reports and advice to the Claimant and her solicitors. I
do not find that his conduct and engagement was improper, unreasonable, or negligent
from the very outset of his involvement in the case, or until November 2017. Mr Jamil
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. 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. I cannot find a failing sufficiently exceptional on
Mr Jamil’s part before November 2017.
15. The next issue then is whether Mr Jamil’s conduct in continuing to act as an expert after
November 2017 has caused the Defendant to incur unnecessary costs. Mr Kirtley, on
behalf of Mr Jamil, says that if he had stopped acting in November 2017 the Claimant
would simply have engaged another expert, and the case would have continued to trial,
and the Defendant would have been in no better position than it is now.
16. But I have no evidence that any other expert would have given positive evidence for
the Claimant. It might very well have been that no other expert would have supported
the claim, at which point she would have discontinued the claim against the Defendant,
and the Defendant would not have incurred costs thereafter. Whilst it is not my function
to try the claim on its merits today, I can say that on my initial reading of the trial
bundles my view was that the Claimant was unlikely to succeed in her claim.
17. On the balance of probabilities I find that the conduct of Mr Jamil in continuing to act
as an expert in this case caused the Defendant to incur all of its costs after November
2017.
18. I have then to consider all of the circumstances of the case and whether it is just to order
Mr Jamil to pay all or some of those costs. Mr Kirtley quite properly reminds me that
the jurisdiction to make wasted costs orders is not intended as a punitive jurisdiction. I
am not to fine Mr Jamil to mark the Court’s displeasure at his conduct.
19. But Mr Jamil 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.
20. I have sympathy for Mr Jamil’s personal position – it is clear from reading about his
personal circumstances and his psychiatric difficulties that he has had a very difficult
time. But the balance comes down firmly in favour of the Defendant.
21. I order therefore that Mr Jamil pay the Defendant’s costs from November 2017 in the
sum of £88,801.68, and the Defendant’s costs of this application.