Posted on 23rd October 2023 by Chris Makin

When Your Expert Costs You Money!

You kind readers of this journal, or of the blog page on my website, will have noticed that I go on and on (and on and on…) about incompetent or even dishonest expert witnesses.  It is over 12 years now since the expert’s immunity from suit was removed – see Jones -v- Kaney [2011] UKSC 13 – and since then we have had:

  • a third-party costs order against an expert – see Martine Robinson -v- Liverpool University Hospital NHS Trust in Liverpool County Court at reference F95Y511 though that was quashed on appeal and 
  • a medical expert threatened with jail in Liverpool Victoria Insurance Company Ltd -v- Dr Asef Zafar [2019] EWCA Civ 392 where the solicitor was jailed immediately.  
  • We have also had blatantly dishonest experts in a major conspiracy to defeat justice in Accident Exchange Ltd -v- Nathan John George-Broom and six others [2017] EWHC 1096 (Admin) where seven experts were jailed for up to 13 months.

Preaching the obvious, the courts rely heavily on expert testimony and are becoming harsh on experts who get it wrong, particularly if they are dishonest.

But what about the lawyers?  Do they get off scot-free?  Not any more!

There have been examples in judgments of the court insisting that instructing solicitors know CPR Part 35, as well as the experts they instruct.  Arnold LJ (sitting as a judge down in the High Court because the case was so very technical) castigated instructing solicitors in Akebia Therapeutics Inc and Otsuka Pharmaceutical Co Ltd -v- Fibrogen Inc, stressing many times that it is the duty of the instructing solicitor, not just the expert, to know CPR 35 and the Practice Direction, and to ensure for example that the expert attaches their CV to their report (basic!) and that there is nothing in the published literature by an expert which contradicts the opinions they express to the court.

But so far, although the reputation of these solicitors can hardly have been enhanced in their clients’ perception, and although costs recovery may have been difficult, there was no example so far as I am aware of the management of experts being a direct cost to instructing solicitors.

But now it’s different.  In Jagger -v- AXA Insurance UK PLC [2023] 7 WLUK 293 the solicitor’s management of their expert was so bad that they rightly will have to meet the cost.

The case concerned a claim for allegedly defective cavity wall insulation installed by Heatwave Energy Solutions.  Heatwave had gone into liquidation by the time the claim was issued in 2022, so their insurers became the defendant.  The claim was for less than £10,000, although the solicitor said they hoped to be able to find an expert who would put it far higher.  They had four months after issue to find such an expert.

In that time, the claim was amended to a remarkable £83,562 to £104,000!  The amended claim form was served almost at the end of the four months, but there was no appended Statement of Truth and the increased court fee was not paid within that four months.

Experts in this speciality were difficult to find. There was a Mr X who may have been able to help, but he had withdrawn from a number of similar cases when it emerged that he was to take a share of the damages, a very obvious challenge to the expert’s independence.

The claimant solicitors never found a suitable expert.  The defendants applied for striking out, or  summary judgment, and the DJ granted this in part.   He was scathing of the solicitor’s behaviour, saying this was an abuse of process.  After all, they had amended the claim from about £10,000 to about £100,000 and had not even paid the additional court fee!

The judge had costs orders in his armoury.  He ordered that the claimants would pay the defendant’s costs of the application for striking out, and they were debarred from claiming any costs incurred during the period of the abuse.

Who in the end will pay these costs?  It is reasonable to suppose that the client will object to paying, so the cost will then fall on the solicitor.

No expert was maligned in this case, but it is a shameful example of a solicitor trying to use the presence – or absence – of an expert to strengthen their case, and finding that it just didn’t work.  They should have known better.

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