Posted on 11th January 2023 by Chris Makin

When Experts Pay For Their Failings – However…

You may have read lots of articles and blogs from me about inadequate or incompetent experts, and having an expert who doesn’t know his job doesn’t help your case.  There are often costs consequences, a strident example being Patricia Andrews & Ors -v- Kronospan Ltd [2022] EWHC 479 which I discuss at length in my blog.  There, you may remember, an expert had charged £225,000 (an enormous sum, far higher than I have ever charged!) but was over two years late in delivering a Joint Statement of Experts.  Then, when enquiries were made, it was revealed that the expert had been in very frequent contact with instructing solicitor, who had played an active part in compiling the joint statement.

The outcome was that the judge decided the expert had no regard for their independent duty to the court.  The instructing solicitor was permitted to appoint another expert to start the task again, £225,000 was wasted and there was probably an order for costs lodged by the other side.

But what we don’t know in this and similar cases is who paid for the damage caused by the incompetent expert; we don’t even know if the experts were paid for their misguided efforts.

Now it’s different, because now we do have a case where the expert was himself ordered to pay wasted costs.

1 Third party costs order (“TPCO”)

The case is against Dr Chris Mercier following Martine Robinson -v- Liverpool University Hospital NHS Trust in Liverpool County Court at reference F95Y511.

 Dr Mercier was an expert witness in a dental negligence case.  An indication of his performance may be gleaned from the very first paragraph, Background, of the judgment in the costs order:

“This was a claim for dental negligence brought by Mrs Robinson, against the Defendant hospital trust, for treatment she received at Aintree Hospital.  At the conclusion of her evidence, Mr Gray on behalf of the Claimant withdrew her claim.  [Mr Maddison for Defendant asked that a third party costs order be sought against Dr Mercier in view of the evidence he had given.  I granted that application.]  Unfortunately, Dr Mercier had blanked his screen at this stage in the proceedings having left to pick his son up from school.  It is not clear how much he heard.  In the same vein, his screen was blanked throughout much of the first day of the proceedings.  His second witness statement suggests that he was similarly not present for some of the hearing prior to giving evidence.”

Pausing there, it is not wise for anyone to ignore a judge when he has the power to make an order against one, and an expert can arguably not do their job effectively if they have not heard the preceding evidence.  A judge rightly gets upset when a witness walks out of the courtroom at key stages, but it is just as offensive when a witness turns off Zoom during a remote hearing.

In the main trial, the matter in issue was confusion over the extraction of a molar.  Mrs Robinson was a nervous patient, and had to have a molar extracted under general anaesthetic.  References were made to UL7 and UL8.  On the day of the operation, the oral surgeon had before him an early referral but not the record of a later referral, and it was admitted that this was a breach of duty.  The surgeon did not extract UL7, believing it could be restored.  

“Dr Mercier for the Claimant argued that no reasonable dental surgeon could have concluded that the UL7 was restorable as at that date…Mr Webster for the Defendant disagreed as to restorability…and it would have been negligent to remove it.”

So this was a clear conflict of expert evidence, as to whether the Defendant should have extracted UL7 as the Claimant contended.  As the judge said, “…the Claimant’s case in respect of breach of duty and causation rested solely on the expert evidence of Dr Mercier.”

The Defendant averred that Dr Mercier should not have been giving expert evidence at all, that he had an ongoing duty to assess whether he was an appropriate expert, and that he failed in that duty.

2 The law

In his review of the law, the judge made reference to Philips -v- Symes (No 2) [2004] EWHC 2330 (Ch) where Peter Smith J found that the court should not remove from itself the power to make a costs order against an expert who, by his own evidence, “…causes significant expense to be incurred, and does so in flagrant reckless disregard of his duties to the court.”  (My emphasis)

There was a reminder that the court, when making such an order, should report the matter to the expert’s professional body; so this is another danger facing the incompetent expert, which could have serious adverse effects on their practice, and not just as experts.

3 Dr Mercier’s oral evidence

The arguments focused on the limited experience of Dr Mercier, a general dental practitioner, compared with the defence expert Mr Keith Webster, an oral and maxillofacial surgeon.  Dr Mercier’s failings are illustrated in this exchange:

Q Can you speak to the standards attributable to an oral/maxillofacial surgeon?

A I believe so.

Q You have never actually occupied that position having never actually been an oral and maxillofacial surgeon, have you, no?

A No, that’s correct.

Q Since 2000 you have never had a patient on a table under general anaesthetic?

A Correct.

Q Would you say you are as well placed as Mr Webster to speak to the standards to be applied to the evidence of an oral and maxillofacial surgeon?

A No, Mr Webster is an oral and maxillofacial surgeon so he is going to have more experience in a hospital setting that I have.

Q My question was are you as well placed.  Would you accept you are not as well placed to speak to-

A Yes.

It is clear that Dr Mercier accepted he was outclassed when he didn’t even wait to hear the whole of the last question.  He clearly was the wrong expert.

There was then discussion of the Bolam test, yet “That is the test that Dr Mercier is purporting to apply when he gives evidence before the court in relation to a claim of dental negligence.  It is right that at no point in any of his written or oral evidence did he himself refer to that test.”

You will recall that the Bolam test asks the expert to say what, in his opinion, the reasonably competent professional would have done in the circumstances.  By failing to make reference to Bolam, one must question whether Dr Mercier knew what was the fundamental test he was expected to apply to the evidence.

4 The judge’s view of the expert

There are disparaging remarks by the judge, such as:

“The report itself reaches wholly unsustainable conclusions.”

“…what he does not do is address his mind in any way to the standards to be applied to an oral and maxillofacial surgeon.”

“Dr Mercier’s witness statement it seems to me entirely misses the point.”

“His opinion fluctuates to whatever he feels will win the case.”

“Dr Mercier’s evidence is simply absurd and his inability to recognise that is extremely concerning.”

There is more, but you get the picture.  It’s all damning stuff.

5 The outcome

It was clear which way the judge was thinking.   Two sentences say it all:

The application before me is predicated on the specific assertion that it should have been obvious to Dr Mercier at the outset, and at various stages throughout the proceedings, that he was not the appropriate expert to opine on the management and treatment afforded to the claimant on 8 November 2016.”  and

I conclude that Dr Mercier has shown a flagrant reckless disregard for his duties to the court and that he did so from the outset in preparing a report on subject matter in which he has no expertise.”

And therefore: “All costs claimed within the Defendant’s cost budget are therefore caused by Dr Mercier’s flagrant disregard for his duty to the court…” and the judge found that those costs, £50,543.85, must be paid by Dr Mercier.

6 The moral

It is very simple; as so often, the answer is in CPR.  At part 35.3(1), I emphasise the three key words: “It is the duty of experts to help the court on matters within their expertise.”

It should have been apparent to this witness, and of course to the lawyers who instructed him, that oral and maxillofacial surgery is not within the expertise of a general dental practitioner.  Any expert, when offered an assignment, must think carefully whether they have appropriate expertise.  The consequences of biting off more than one can chew can be grave.

7 However…

However, the story doesn’t end there.

It is obvious from the above narrative that Recorder Abigail Hudson had not been impressed with Dr Mercier’s performance as an expert. Indeed, when permission to appeal the TPCO was granted, Choudhury J said some of the language used was “regrettable” and “unduly harsh”.

An appeal, supported by Dental Protection, was heard before Sweeting J and he quashed the order. He said there was “nothing illogical or partisan” in Dr Mercier’s evidence or conclusions. Little was said about the matters to which Recorder Hudson had taken exception, but the nub of this case was whether the tooth in question was restorable, or should have been extracted. This was within the expertise of a general practice dentist as much as that of a maxillofacial surgeon. Mrs Robinson was under anaesthetic only because of her phobia about dental treatment.

So the whole case did indeed stand or fall on expert evidence, and both experts were competent to give that evidence under CPR 35.3(1). Because Dr Mercier was now regarded as competent, he had not wasted the time of the lawyers or the court. So he was not required to pay for wasting the defence’s time.

But, as the Duke of Wellington said about the battle of Waterloo, it was a close run thing. And Dr Mercier’s reputation cannot have been enhanced by his performance before the Recorder. This case illustrates the important part played by experts in litigation, why we must get it right, and the likely consequences if we don’t.

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