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Nadia Whittaker successfully appeals a Third-Party Costs Order

Appearing for the Appellant in Robinson v Liverpool University Hospitals NHS Trust and Mercier [2023] EWHC 21 (KB) before Mr Justice Sweeting on instructions of Mr Joseph McCaughley, Solicitor for Dental Protection, Nadia Whittaker successfully appeals a Third-Party Costs Order (TPCO) in the sum of £50,543.85 made against a medico-legal expert, Mr Christopher Mercier, instructed for the Claimant in a dental negligence claim. In pursuing a TPCO at first instance and on appeal the Trust was represented by Giles Colin on instructions from Hill Dickinson LLP.

The decision of Recorder Abigail Hudson in Robinson v Liverpool University Hospitals NHS Trust and Mercier (County Court at Liverpool, 9 September 2021) to award a TPCO against Mr Mercier was widely reported in the legal press and hailed as a stern warning to expert witnesses about a risk of liability for costs when acting as medico-legal experts. Interest in the decision was further piqued by the Recorder’s trenchant criticism of Mr Mercier in her judgment.  The Recorder’s decision followed in the wake of Thimmaya v Lancashire NHS Foundation Trust and Jamil [2020] PNLR 12 where the Defendant Trust, also represented by Mr Colin, was successful in securing a TPCO before Her Honour Judge Evans.

In allowing the appeal, Sweeting J held that the Recorder’s conclusion that Mr Mercier stepped outside the boundary of his expertise in giving expert opinion about breach of duty and causation in a personal injury case concerning allegations of negligence against an Oral and Maxillofacial surgeon was wrong. Sweeting J’s conclusion was based on the following factors:

  • The Defendant Trust’s application for a TPCO was predicated on its contention that, as a dentist rather than a dental surgeon, Mr Mercier lacked relevant expertise to be a medico-legal expert in this case which concerned care provided by a dental surgeon. On proper analysis, however, Mr Mercier did have the requisite expertise to comment on the relevant issues. The treating dental surgeon was also a dentist as was Mr Webster, the expert instructed by the Trust. Mr Mercier’s opinion regarding breach of duty concerned an examination that was undertaken by the treating dental surgeon prior to taking the Claimant’s consent. In the circumstances of this case there could be no sensible suggestion that any different standard applied to the examination of the patient’s teeth and the x-rays to confirm which required extraction as between a surgeon dentist and a general practitioner.
  • There was nothing illogical or (as the Recorder appeared to suggest) partisan about Mr Mercier’s conclusions and they were supported, in part at least, by the expert instructed by the Trust. The treating surgeon himself acknowledged in evidence an error in failing to identify – prior to taking the Claimant’s consent – that, although two molars were present in the upper left quadrant on the x-ray, only one remained in her mouth.
  • The treating surgeon’s failure to carry out a proper examination had an arguable consequence in relation to consent if, absent the error, it would have led to a discussion with the Claimant in relation to the scope of the extraction procedure she was about to have.
  • Mr Mercier was qualified to give an opinion in relation to the viability of a tooth and whether its condition was such that it required extraction. Both he and Mr Webster gave their opinions on the point given that it went directly to causation.

Sweeting J concluded at [69] “There may well have been grounds to criticise Mr Mercier’s performance as an expert witness and to attack his conclusions, but this was not an exceptional case and did not involve a flagrant or reckless disregard of an expert’s duty to the court. On the facts of this case it would not be just to make a costs order against him in any amount.”

Key messages from the Judgment:

  • The test for a TPCO as set out at [93]-[96] of the judgment of Mr Justice Peter Smith in Phillips v Symes [2004] EWHC 2330 represents a high threshold. It is necessary to establish that the expert acted in flagrant reckless disregard of his duties to the Court”.
  • The scope of the suitability of an expert’s expertise is to be judged with reference to the issues at stake and not with reference to the title of or post occupied by the treating clinician.
  • The terms of section 51 of the Senior Courts Act 1981 expressly require proof of causation (see Travelers Insurance Company Ltd v XYZ [2019] UKSC 48 per Lord Briggs JSC at [80]).
  • The importance of the doctrine of informed consent as set out in Montgomery v Lanarkshire Health Board [2015] UKSC 11 should not be overlooked when considering causation. An argument that the clinician did the “right thing” by taking a decision in the patient’s best interests when she was under general anaesthesia is not a substitute for proper consideration of the issue of causation that flows from a potential failure to obtain the patient’s informed consent.

See here for a more detailed case analysis of the underlying facts and Sweeting J’s decision.

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