Liability for costs — Expert witness — Non-party to action — Duty to court — Breach of duty — Order for costs — Whether court having power to make costs order against expert — Ruling made
An expert medical witness had produced a report recommending that the first defendant was not mentally fit to provide evidence in litigation concerning a partnership and that he had been incapable of managing his affairs since 1980. The expert had signed statements, as required by CPR 35 and PD 35, to the effect that he understood his duty to the court as an expert witness and had complied with that duty. The court subsequently ruled that the defendant did not lack mental capacity.
It was unlikely that the claimant administrators would be able to recover their costs against the first defendant who was bankrupt, and they applied for the expert to be joined as a party to the action on the question of costs. They contended that experts owed duties to the court in respect of the way in which they gave evidence. They also argued that it was right and proper that the ability of the court to order an expert to pay compensation to parties who had suffered loss by reason of his gross dereliction of duty should be affirmed. The liability of experts should be regarded as strongly analogous to that of advocates who were subject to sanctions for wasted costs.
The court had to decide whether: (i) expert witnesses required immunity from a costs application to further the administration of justice; or, alternatively, (ii) it would be against the administration of justice not to allow the administrators to make their costs application.
Held: The court ruled accordingly.
In all the circumstances, without deciding whether he had in fact been guilty of a breach of duty, the expert had a case to answer. The proper sanction was the ability to compensate a person who had suffered loss by reason of evidence given by an expert witness in gross dereliction of duty or recklessness. Other available sanctions were either ineffective or nothing other than blunt instruments.
In the administration of justice and in the light of the clearly defined duties set out in CPR 35 and PD 35, it would be wrong for the court to divest itself of the power to make a costs order, where appropriate, against an expert who, by his evidence, caused significant expense to be incurred in flagrant disregard of his duties to the court.
The nature of an expert’s duty should not alter with the status of his client. He had an objective duty to comply with the expert duties imposed by the court. His overriding duty to give his true professional opinion should not be hindered by factors such as the severity of the consequences or the fact that another party might be adversely affected by the impecuniosity of his client.
The duty of the expert was to assist the court on matters within his expertise, and that duty overrode any obligation to the person from whom he had received his instructions or by whom he was being paid.
Alan Steinfeld QC, John Stephens and Jessica Chappell (instructed by Lane & Partners) appeared for the first and second claimants and for the same parties on the issue of costs, where the parties were the first and second respondents; Justin Fenwick QC and Leigh-Ann Mulcahy (instructed by Manches) appeared for the tenth respondent; the other parties did not appear and were not represented.
Eileen O’Grady, barrister
