Experts and their duty to the court

Witness iStock 000005559204XSmall 146x219A solicitors’ firm was held liable for a failure to ensure that their expert was aware of his duty to the court and for continuing to rely on patently unreliable expert evidence. Stephen Homer examines the ruling.

A firm of solicitors received a wasted costs order against them when it became apparent that their expert did not understand his duty to the court and when the solicitors continued to press the case regardless of this and the obvious weakness of their expert's evidence.

Background

In the substantive judgment of Mengiste and Another v Endowment Fund for the Rehabilitation of Tigray the court had found for the defendant, in the process criticising the performance of the claimant's key expert witness. Costs were awarded to the defendant and the court's criticism had been such that these were on an indemnity basis from the date of cross examination of the expert when his evidence was discredited.

The claim

The defendant's solicitors then applied for a wasted costs order against the claimant's solicitors on the basis that the expert's report was inappropriate and tendentious, that the expert had not understood his duty to the court and that as a result, the defendant had incurred unnecessary costs. In consequence, it was claimed that the court should exercise its power to make a wasted costs order under ss.51(6)-(7) of the Senior Courts Act 1981. The claimant's solicitors indicated that they could not be held responsible for the poor conduct of their expert and cited issues of privilege and disclosure.

The judgment

The court granted the application, holding that the circumstances of how the report came to evidence and consequently matters of privilege, were irrelevant. The court held that what mattered was that the claimant's solicitors had not abandoned the case when the evidence of the expert on whom their case rested, was "destroyed" upon cross examination. Instead, the court noted that the claimant's solicitors had sought an adjournment which they used to try to recover a plainly irrecoverable cause, removing some elements of the report and making other adjustments to it. This had merely incurred further costs. The court also held that it was clear that the expert had not understood his duty to the court.

The court noted that solicitors should not be penalised merely for pursuing a weak case and that something more was required to warrant a costs order against a solicitor. The court followed Metcalf v Mardell [2003] 1AC 120 in stating that in order to secure a wasted costs order the applicant for such an order must show that:

  1. The respondents are guilty of conduct which is negligent, unreasonable or improper; and
  2. Such conduct resulted in losses incurred by the applicant which otherwise would not have been incurred; and
  3. It is fair, just and reasonable for the court to exercise its discretion to award a wasted costs order.

Conclusion

Whilst the circumstances in which a court will penalise a solicitor for pursuing a prima facie weak case are rare, this case demonstrates that where the evidence of a pivotal witness is discredited, continuation of the case may be risky. More obviously the case demonstrates the need for solicitors to ensure that any experts are aware that under CPR 35.3 their duty, first and foremost, is to the court.

Stephen Homer is a partner at Ashfords. He can be contacted on 01392 333883 or by This email address is being protected from spambots. You need JavaScript enabled to view it..