Martine Robinson v Liverpool University Hospitals NHS Trust

A costs order against a non-party expert is exceptional. The court must decide whether, in all the circumstances, it is just to make the order. The expert’s evidence must involve more than an arguable error, imperfect performance, or criticism open to challenge at trial. A general dental practitioner may be qualified to give expert evidence on examination, tooth viability and the need for extraction, even where the treatment was performed by a maxillofacial surgeon, if those matters fall within the practitioner’s competence. The court must also distinguish between the expert’s qualifications and the way the case was pleaded or presented by the legal representatives.

The claimant brought a clinical negligence claim against the defendant NHS Trust concerning a dental extraction. The claim was withdrawn after the claimant’s expert, Mr Mercier, had given evidence at trial but before the defendant’s expert gave evidence. The Recorder subsequently made a third-party costs order requiring Mr Mercier to pay £50,543.85.

The Recorder considered that Mr Mercier, a general dental practitioner, should have recognised that he was not qualified to give evidence concerning treatment by a maxillofacial surgeon and that his conduct involved a flagrant or reckless disregard of his duties to the court. Mr Mercier appealed. The issue was whether he was qualified to give the opinions expressed and whether it was just to make a third-party costs order.

1. Appeal allowed. The third-party costs order was set aside. On the facts, it was not just to order Mr Mercier to pay costs.
2. The jurisdiction to make costs orders against non-parties derives from Senior Courts Act 1981, section 51(1). The ultimate question is whether the order is just in all the circumstances. The exceptional nature of the jurisdiction means that more is required than ordinary criticism of an expert’s evidence or performance.
3. The Recorder was wrong to treat Mr Mercier’s status as a general dental practitioner as disqualifying him from expressing opinions on the issues in question. General dental practitioners carried out extractions, assessed teeth, interpreted relevant radiographs and determined whether teeth required extraction. Those matters were within Mr Mercier’s expertise, even though the procedure had been performed under general anaesthesia by a surgeon undertaking maxillofacial training.
4. Both experts agreed that a reasonable practitioner should examine the patient before consent was completed and should check which tooth required extraction. There was no evidential basis for imposing a different standard for that examination according to whether the extraction was performed by a general dental practitioner or a maxillofacial surgeon.
5. Mr Mercier’s opinions concerning examination, consent, tooth viability and causation were within his expertise. There were possible grounds for challenging his conclusions and the manner in which he gave evidence, but those matters did not establish a flagrant or reckless disregard of his duties to the court. The fact that the case had been poorly formulated or advanced was principally a matter for the claimant’s legal representatives.
6. The judgment made no finding that the treating surgeon had breached a professional duty. The claim had been abandoned before the court heard the defendant’s expert or argument on the merits, so no concluded view could be reached on liability.

• High Court (King’s Bench Division): Recorder Hudson made a third-party costs order on 24 September 2021 requiring Mr Mercier to pay £50,543.85. Permission to appeal was granted by Choudhury J. The appeal was allowed by Mr Justice Sweeting on 11 January 2023.