[edit on 28 January 2023 to note that this decision was overturned on appeal, see my blog here]

Background

A dental surgeon removed two teeth but left a third tooth in place in the belief that it was restorable.  It was the decision to leave the third tooth alone that was ultimately the subject of a claim for negligence by the patient, which critically, was supported by expert evidence provided by a dentist.

The “expert” evidence

In the course of his videolink evidence the dentist conceded that he had no experience of surgical removal of teeth in the last twenty years, had no experience at all with the relevant consent process; and agreed that his counterpart expert “was better placed” to provide an expert opinion.  Immediately after his evidence concluded, the patient’s solicitor withdrew her claim, and following that surrender, the defendant’s solicitor flagged that it would consider an application for a costs order against the expert, at which point it was discovered that the expert had turned his camera off and left the proceedings (to collect his son from school, it transpired).

Outcome

The defendant did decide to seek a third party costs order, arguing that the expert should not have given evidence at all, and that he had “patently failed” his ongoing duty to ensure that he was the appropriate expert to assist the Court.

In Robinson v Liverpool University Hospital NHS Foundation Trust v Mercier the County Court held that:

• The expert’s evidence was “simply absurd.” His report presented “wholly unsustainable conclusions” and his opinion had “fluctuate[d] to whatever he [felt would] win the case.”
• The expert
  • had demonstrated “a gross lack of understanding of the seriousness of his role…[and] a flagrant reckless disregard of his duty to the court.”
  • Made no “efforts to assist the court…instead wilfully sticking to his case theory irrespective of the questions asked or the evidence given.”
  • Had “shown a flagrant reckless disregard for his duties to the Court” from the outset in preparing a report on subject matter in which he had “no expertise.”
• The claim would not have proceeded without the expert’s report and so it was appropriate that he pay £50,543.85 in respect of the defendant’s costs.