Is the Conduct of an Expert Relevant to Costs?
Mrs Williams brought a claim for personal injuries sustained by her during a road traffic accident. The litigation was lengthy and, as the Judge found, conducted at “high temperature”. Mrs Williams claimed, amongst other things, to have sustained an injury to her brachial plexus and a brain injury.
During the original trial, the Judge heard evidence from, amongst others, an orthopaedic expert and neurologist for the Defendant, both of whom were subject to serious criticism by the Judge. Essentially, both experts had formed the view that Mrs Williams was malingering.
Of the Defendant’s Orthopaedic expert, the Judge considered that, despite the expert’s clear conclusions that there was nothing wrong with Mrs Williams, it was not possible to be clear from his evidence what medical records, reports and witness statements he had seen prior to writing his report. The Judge noted that the expert had contradicted himself when answering questions as to what lay witness evidence he had read and there were a number of inaccuracies in the report which were due to him not having read the source material. It was clear that the expert had not properly read Mrs Williams’ own statement. There was a discrepancy between the evidence of Mrs Williams and the expert as to the time allocated to her during his consultation. That was resolved in Mrs Williams’ favour. On the other hand, the Judge found the Orthopaedic expert for the Claimant to be a “thoughtful, careful and open-minded witness who kept his conclusions under review”. His evidence prevailed.
Of the Defendant’s neurologist, the Judge concluded that the expert had displayed “poor judgment” in obtaining evidence about the case other than from his Instructing Solicitor; he had mis-recorded some of what Mrs Williams had told him during their consultation as demonstrated by a transcript of Mrs Williams’ tape-recording of their conversation; and there were “clear indications of a lack of thoroughness and a failure to spend adequate time in properly analyzing the case”. The Judge concluded that he was unable to place reliance on his expert evidence.
The Claimant succeeded in her claim for damages and, following the normal rule, sought an Order that the Defendant do pay her costs. After argument (which is not relevant to us) the Defendant was ordered to pay 100% of her costs. However, given the conduct of the Defendant and more particularly, but not quite exclusively, the conduct of the Defendant’s two experts, the Claimant sought those costs on an indemnity basis (i.e. a basis which makes it easier for the Claimant to recover the full amount of their costs rather than just their reasonable costs).
Did the conduct of the two experts (and the other limited issues with regard to conduct) justify an award of indemnity costs rather than costs assessed on the standard basis?
The Court has a wide discretion as to whether to award indemnity costs, however, “before an indemnity order can be made, there must be some conduct or some circumstance which takes the case out of the norm. That is the critical requirement” – See: Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hammer Aspden and Johnson  EWCA Civ 879.
The Judge observed that indemnity costs were not appropriate just because the paying party had been found to be wrong or their evidence had been rejected in favour of the receiving party. Further, when looking at what was and was not outside the norm, conduct could not be considered with the benefit of hindsight, i.e. with the knowledge of the outcome of the case.
The Judge rejected the other (non-expert related) conduct issues as justifying an award of indemnity costs. However, with regard to the conduct of the experts the Judge said:
“Both these doctors, in their conduct as expert witnesses, justify in the Claimant’s submission, an order for indemnity costs. Each was the subject of severe criticism in the main judgment. Their conduct, and the way they addressed their duties as expert witnesses fell well below what can properly be expected from expert witnesses and in my judgment can certainly be described as falling ‘outside the norm’. It is not a question of the evidence of other witnesses being preferred to the evidence of these two doctors or of their merely performing poorly as witnesses during the case. Nor is my assessment of them based on hindsight. The sad fact is that these two doctors did not address their responsibilities or conduct themselves properly as expert witnesses … These two doctors supported that case [that the Claimant was malingering] and they gave strong evidence as to the lack of integrity in the Claimant’s case. However, in reaching the views that they expressed they did not exercise the care which it was incumbent upon them to exercise and their approach to their duties was inadequately controlled and reality tested.”
On that basis, the Judge ordered that costs be paid on the indemnity basis insofar as those costs related to dealing with the evidence of these two expert witnesses. The remainder of the costs were to be assessed on the standard basis.