The recent decision of Robinson v Liverpool Hospitals NHS Trust v Mercier provides guidance on the ordering of costs orders against expert witnesses. Reversing the first instance decision, it confirms that the threshold for such orders is high, their ordering is rare, and relevant issues and expert background will be considered over specific job titles or positions.

The decision in Robinson v Liverpool Hospitals NHS Trust v Mercier [2023] EWHC 21 (KB), handed down on 11 January, provides guidance on the circumstances in which cost orders may be granted against expert witnesses. In overturning the County Court’s decision, the High Court confirmed such orders will be rare and the threshold for granting them is high, requiring a flagrant reckless disregard of an expert’s duty to the court.

The case makes clear that an expert need not have the same job title to the allegedly negligent person to provide evidence on their conduct and, instead, the court will consider the relevant issues in the case and the expert’s professional background.

Background: Cost Order against expert granted at first instance

Miss Robinson brought an action for an allegedly negligent dental procedure carried out by a trainee oral and maxillofacial surgeon employed by the defendant, Liverpool University Hospitals NHS Trust. The claimant later withdrew her claim, but the defendant was granted a Third-party Costs Order (“TPCO”) against the claimant’s medico-legal expert, Christopher Mercier. Mr Mercier was ordered to pay over £50,000 after the defendant argued that as a general dental practitioner, Mr Mercier should not have been expressing expert opinion on the standard of care afforded to the claimant by a maxillofacial surgeon.

Decision: high threshold not met

Overturning this decision, Sweeting J held that the County Court had been wrong to conclude that Mr Mercier had stepped outside the boundary of his expertise. As a dentist, he was qualified to give an opinion in relation to the subject matter: the viability of a tooth and whether its extraction was required.

He had been asked to identify breaches of duty and identified a breach regarding clinical examination as part of the pre-extraction consent process. Contrary to the finding at first instance, his conclusions were held not to be illogical or partisan. It could not sensibly be suggested that there was a different standard applied to the relevant matters – the examination of patient’s teeth and x-rays to confirm which teeth required extraction – when carried out by a general dental practitioner as compared to a dental surgeon.

The decision makes clear that there may be grounds to criticise the expert’s performance: reference was made at first instance to him preparing reports prior to receiving all radiographs and there being an 18-month interval between the operation and his examination of the claimant. However, costs orders would only be justified where there was "flagrant or reckless disregard of an expert's duty to the court" (Phillips v Symes [2004] EWHC 2330). Sweeting J held that the case was not exceptional and did not involve such disregard.

Comment: The continuation of the High Threshold

The decision at first instance followed another decision which ordered a TPCO, Thimmaya v Lancashire NHS Foundation Trust and Jamil [2020] PNLR 12, and was seen as a warning of the risk of expert liability, should they step outside their area of expertise. Robinson v Liverpool Hospitals NHS Trust v Mercier reverses this brief trend, confirming that the test for cost orders against experts is a difficult one to satisfy.

The courts have previously suggested that the risk of cost orders against experts would not deter them because of the high threshold in place. Time will tell whether that remains the case and whether the issuing of TPCO’s, even where later overturned, dissuades experts from taking instructions.