FAILED ATTEMPT TO OBTAIN COSTS FROM A JOINT EXPERT: A LOT TO LEARN HERE
In Walker -v- TUI UK Limited (Manchester County Court 14th January 2021)* District Judge Obodai considered an application by the defendant to join a jointly instructed expert into the action as a party for the purpose of obtaining costs against them. The application was refused. There is much to learn from it.
“I would expect any prudent lawyer, when provided with the curriculum vitae of a proposed SJE, to make their own enquiries as to his/her expertise before agreeing to accept said expert.”
The claimants brought an action alleging they had suffered a gastric illness whilst on a package holiday. They brought an action and the court ordered that a jointly instructed medical expert be instructed. The claimant proposed an expert and the defendant agreed. The defendant asked questions of the joint expert and then asked that the jointly instructed expert attend trial. The claimants’ action failed, the judge not accepting their evidence. At the end of the trial the defendant’s counsel asked that the jointly instructed expert be joined into the action for the purpose of costs. The judge ordered that an application be made on notice to the expert. This judgment was the hearing of that application.
THE JUDGMENT OF THE DISTRICT JUDGE
The judgment contains a detailed examination and consideration of the relevant authorities in relation to expert conduct and joining an expert into an action for costs in particular. The District Judge held that the appropriate test was that in
“Peter Smith J in Phillips v Symes set the threshold test for an applicant to surmount as a high one and said that a high level of proof would be needed to establish gross dereliction of duty or recklessness. I agree with him. Experts can sometimes breach their duties to the court and can also be criticised by the court. but if every time either occurred, the test was,” no more than outside the ordinary run of cases” then that has the potential to lead to satellite litigation and perhaps a plethora of applications for joinder for s51 costs. That cannot, in
my opinion, be right or what was intended by the use of the word, “exceptional”.
THE STEPS THAT NEED TO BE TAKEN IF A PARTY WISHES TO CROSS-EXAMINE A JOINT EXPERT
The District Judge observed that there is a particular duty on a party who wishes to cross-examine a joint expert.
78. When Mr Boyle made the application to cross-examine Dr Leigh I was not made aware of the guidance from the Court of Appeal in Popek v NatWest Bank Plc  CPLR 370 and the observations made by Dyson LJ at paragraph 49 that:
“It is obviously sensible that if a single joint expert is (unusually) to be subject to cross-examination, then he or she should know in advance
what topics are to be covered, and where fresh material is to be adduced for his or her consideration, and this should be done in advance of the hearing”.
79. Mr Clegg argued (by reference to paragraphs 66 and 67 of Philips v Symes that there was no reason to warn Dr Leigh before trial. That is not the point because the warning should have been given by the Defendant as set out in Symphony when it thought it might seek an order for costs against him. Why no such warning was given is a question that has not been answered by the Defendant. It was not addressed in Ms Southgate’s evidence or by Mr Clegg in his skeleton and/or submissions”
The District Judge went on
“In Philips vSymes 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 SJE, 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 ROLE OF THE EXPERT
The defendant criticised the expert for relying on the claimant’s history as the sole input.
” I do not accept that any of the Defendant’s submissions or evidence is sufficient to meet the threshold test. A Claimant can provide one version of events to a medical expert, which version when tested during cross examination does not stand up to scrutiny. I do not see it as the role of the expert to interrogate a Claimant at length. An expert takes the medical history described by a Claimant in good faith, unless there are serious discrepancies and then, I would expect an expert to comment on those. In this case, the Claimants ‘stuck to’ their version of events till they were cross examined. They lost primarily because I did not accept their evidence. I fail to see how that can be laid at the door of the evidence provided by Dr Leigh such that it could be said that it caused significant expense to be incurred in flagrant disregard of his duties to the court.”
THE DEFENDANT’S ASSERTION THAT THE DOCTOR WAS “NOT AN EXPERT”
The District Judge dealt robustly with the defendant’s argument that the doctor was not an expert.
“If the Defendant had thought Dr Leigh was not an expert I fail to understand why it would agree to him being instructed as a SJE. I would expect any prudent lawyer, when provided with the curriculum vitae of a proposed SJE, to make their own enquiries as to his/her expertise before agreeing to accept said expert. I find that the Defendant was provided with Dr Leigh’s curriculum vitae. I therefore, fail to understand the Defendant’s position that Dr Leigh is not an expert. Ms Southgate does not deal with any of this in her witness statement; simply reiterating the point as she does, does not take the Defendant or its evidence any further.”
THE RESULT: THE DEFENDANT’S APPLICATION WAS UNSUCCESSFUL
“My decision therefore, is that Dr Leigh will not be joined pursuant to CPR 46.2 for the purposes of a costs order being made against him. The Defendant has simply not met the threshold test set out in Philips v Symes for the reasons set out above. It has provided no evidence that, but for the evidence of Dr Leigh, the claims would not have proceeded to trial at all; no evidence that his conduct has led to it incurring significant expense from the date of accepting instruction; failed to identify the expertise it says he did not have, particularly given it agreed to his instruction as a SJE”
*transcript available on Lawtel