Being an expert witness can be pretty daunting.
First, there is the decidedly unappealing prospect of being forensically cross-examined by a clever barrister on the minutiae of your report and the limitations of your expertise – avoiding placing your feet into any carefully laid traps.
But then there is the even more terrifying possibility of finding yourself slapped in the face with a third-party costs order if you get things wrong.
This latter point didn’t used to be anything that experts really had to worry about – because it rarely happened. But then in 2021, a dentist found himself hit with a third-party costs order of more than £50,000 – sending shockwaves through the expert witness community.
But now – happily for experts, and the litigators and clients who instruct them – this ruling has been reversed, in a High Court decision handed down earlier this month.
In Robinson v Liverpool University Hospitals NHS Trust and Mercier [2023] EWHC 21 (KB), Mr Justice Sweeting overturned the £50,000 third-party costs order that was granted by Recorder Abigail Hudson in Liverpool County Court, against a dentist expert witness. The judge rejected Recorder Hudson’s finding that the expert had shown a ‘flagrant’ disregard for his duty to the court, and found that it would not be fair to make any costs order against him at all.
Part of the reason for Recorder Hudson taking the unusual step of ordering costs against the expert was that she found he had ‘stepped outside the boundary of his expertise’ – as he was a general dentist and not a maxillofacial surgeon. But Sweeting J rejected this idea. He said:
‘There may well have been grounds to criticise [the witness’s] performance as an expert witness and to attack his conclusions, but this was not an exceptional case, and did not involve a flagrant or reckless disregard of an expert’s duty to the court.’
The High Court judge found that although the expert was a general dentist rather than a maxillofacial surgeon, he was still perfectly qualified to give an opinion on the issue at stake – which concerned whether a tooth was viable, and whether it needed to be extracted.
The upshot of the ruling is that the bar for ordering third-party costs against expert witnesses, which seemed to have dropped right down following Recorder Hudson’s ruling in 2021, has now returned to its usual position – which is reassuringly high.
So now expert witnesses can afford to worry considerably less about being ordered to pay large sums in litigation costs. But as to those cunning cross-examining barristers – they may still cause a few sleepless nights.
January 30, 2023
Insights
