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Expert advice, cost orders and leaping those high hurdles

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legal matters

Most expert witnesses understand that their duty is to the court, writes Sue Lindsey, but there are circumstances in which their misconduct can give one of the parties cause for complaint.

Recently the court has been asked to consider for the first time whether costs might be sought by a party against an expert, and concluded that such an order could theoretically be made (Phillips and others v Symes and others, 20.10.04).

The background facts concerned Dr Zamar, an expert psychiatrist. In reaching his conclusion the judge emphasised that he had made no decision against Zamar, or reached any conclusions as to whether he was in breach of his expert duties. The administrators acting for the claimant sought to establish that the court had the power to make a costs order against Zamar.

The problem was that Zamar's evidence had been that Mr Symes, the defendant, lacked the mental capacity to manage his affairs, and had been in that condition for many years. There were potentially serious consequences for the administrators if this opinion was correct. They alleged that Zamar had refused to reconsider his report in the light of additional material sent to him, or even look at it. When the matter came to trial, the judge directed that Zamar should look at the new material. The administrators said Zamar was then forced to accept that Symes was, in fact, capable of managing his affairs.

In the usual course of events, the administrators could have sought to recover their costs from Symes. But as he was impecunious, they turned their attention to Zamar.

Section 51 of the Supreme Court Act 1981 gives the court complete discretion as to what costs orders it can make. It was pursuant to that section that the administrators sought an order against Zamar. While an order for a non-party to pay costs will always be exceptional, the Section 51 power has been used by the court, in limited and appropriate circumstances, to order costs against non-parties. Those have included costs against a non-party who has financed an action, against a party in a related action heard at the same time, and in group litigation where one or two actions had been selected as test cases.

In considering whether a costs order might be made against an expert, the judge reviewed the position of witnesses, including experts, and their traditional immunity. As a rule, damages or other remedies cannot be sought against witnesses as a result of the evidence that they give. That protection is intended to encourage witnesses to give evidence fearlessly.

It was argued by Zamar that this general protection should extend to prevent the Damoclean sword of a possible costs order from hanging over an expert, which, it was said, would be contrary to the administration of justice.

The judge disagreed. He concluded that the court should not remove from itself the power to make a costs order against an expert in appropriate circumstances. Potentially, the other sanctions available include proceedings for contempt, the expert's own costs being disallowed, and referral to a professional body for disciplinary action. But the judge considered these to be blunt instruments; the proper sanction was to compensate the person who had suffered loss as a result of the expert's default.

The judge also considered whether, when a party was considering the possibility of making such a costs application, the expert should be warned. He concluded that the provisions of the Civil Procedure Rules, and the content of the declaration that experts have to sign, was sufficient to bring home to an expert that there were potentially adverse consequences in the event that their duty to the court was breached.

So it is now theoretically possible to get a costs order against an expert, but the hurdles are high.

The applicant would have to prove that there had been gross dereliction of duty or recklessness.

From the point of view of experts, it is unlikely that they will be deterred from performing their duties by the possibility of such an order, given the serious default needed to trigger it. And it is, of course, open to an expert in difficulties to seek directions from the court as to how to proceed.

Sue Lindsey is a barrister at Crown Office Chambers. Visit www. crownofficechambers. com

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