Phillips & Ors v Symes & Ors

An expert witness owes an overriding duty to assist the court with independent, objective and unbiased evidence. That duty is reinforced by CPR 35 and is not altered by the status or solvency of the instructing client.

The court has jurisdiction under section 51 of the Supreme Court Act 1981 to make a non-party costs order against an expert whose evidence was prepared or given in flagrant and reckless disregard of those duties. Witness immunity does not necessarily prevent such an order. The jurisdiction is exceptional and requires more than negligence. An expert need not receive a further warning beyond the duties and declarations imposed by CPR 35.

The Administrators of the estate of Christo Michailidis sought to join Dr Zamar to proceedings concerning Robin Symes, for costs purposes only. Dr Zamar had provided psychiatric evidence about Mr Symes’s capacity and had been criticised in an earlier judgment.

The Administrators alleged that Dr Zamar had failed to comply with his duties as an expert, including the duties to remain objective, consider material adverse facts, avoid advocacy and revise his opinion when appropriate. They contended that the court could order him to compensate them for costs caused by a gross or reckless breach of those duties.

The preliminary issues were whether such a claim was legally available, whether witness immunity prevented it, whether a warning was required, and whether the judge should recuse himself.

1. The application could proceed. The court had not determined that Dr Zamar was liable. It held only that he had a case to answer and that directions should be given for the further inquiry.
2. Expert duties. An expert must assist the court on matters within the expert’s expertise. The duty overrides obligations to the person instructing or paying the expert. The expert must provide independent, objective and unbiased assistance, consider facts which may detract from the opinion, identify limitations in the available material, communicate material changes of opinion, and comply with CPR 35 and the Practice Direction.
3. Costs jurisdiction. Section 51 of the Supreme Court Act 1981 gives the court a discretion to order costs against a non-party in appropriate circumstances. Following the reasoning in Symphony Group Plc v Hodgson [1994] QB 179, such orders are exceptional and require caution. The categories of case are not closed. The court held that the jurisdiction can extend to an expert whose conduct as a witness has caused costs, where there has been flagrant or reckless disregard of the expert’s duties. Mere negligence is insufficient.
4. Witness immunity. Witness immunity protects witnesses from civil proceedings founded on the evidence itself, but it is not an absolute bar to every procedural or costs consequence of misconduct. The court considered Arthur J S Hall & Co v Simons [2002] 1 AC 615, Stanton v Callaghan [2000] 1 QB 75 and Darker v Chief Constable of West Midlands Police [2001] 1 QB 435. In the court’s view, allowing an exceptional costs jurisdiction would not deter experts from giving evidence fearlessly and would provide an effective compensatory sanction.
5. Warnings and recusal. Whether a warning is required depends on the circumstances. An expert is sufficiently warned by CPR 35 and the declaration accompanying the report. A further warning would risk improper pressure. The judge was not required to recuse himself merely because he had criticised Dr Zamar’s evidence. The costs inquiry was materially different from the earlier capacity trial and could be conducted fairly and proportionately.

Not stated in the judgment.