Defendant obtains wasted costs order against Claimant’s medico-legal expert: Samantha Thimmaya v Lancashire Teaching Hospitals NHS Foundation Trust [2020]

Defendant obtains wasted costs order against Claimant’s medico-legal expert: Samantha Thimmaya v Lancashire Teaching Hospitals NHS Foundation Trust  [2020] 

Facts:

The Claimant brought a clinical negligence case in respect of treatment received by a hospital managed by Lancashire Teaching Hospitals NHS Foundation Trust. The Trial was heard on 11 and 12 March 2019.  The Claimant relied upon expert evidence from Mr Jamil, Consultant Spinal Surgeon and Medico-Legal Expert.  Whilst in the process of being cross-examined at Trial, Mr Jamil was “wholly unable to articulate the test to be applied in determining breach of duty in a clinical negligence case”. The Claimant then had no option but to discontinue her claim as Mr Jamil was the only expert she relied upon.

Following the Trial, the Defendant pursued a wasted costs order against Mr Jamil on the basis he was not competent, generally, for the case. It was noted that he had only twice (and under supervision) conducted the surgery about which complaint was made.  He was also not aware of the correct legal test to be applied in clinical negligence cases and had been unfit to act as a Medico-Legal Expert because he had been suffering from psychiatric illness that caused him to commence sick leave from November 2017 and then retire from clinical practice in early 2018.

The matter proceeded to an application hearing on 30 January 2020.  Counsel for Mr Jamil made submissions that in hindsight Mr Jamil accepted he was not fit at the time of Trial to give expert evidence due to mental health problems.  He did not accept that he was or is unaware of the Bolam / Bolitho test and that he had an adverse reaction at the Trial, as Counsel for the Defendant resembled someone who had interrogated him in Iraq.

The issues before the Court were:

1. Whether Mr Jamil had failed in his duties to the Court.
2. If he had failed in those duties, from what point he had failed in those duties.
3. Whether those failings had caused the Defendant to incur unnecessary costs.
4. Whether it was “just” in all the circumstances to make a wasted costs order.

HHJ Evans concluded that:

• The gateway to it unfolding that Mr Jamil was not aware of the test for breach of duty was at the time of joint statements when he referred in that statement to “best practice” which is not the appropriate test.
• Mr Jamil may well have been aware of the appropriate test previously but that was not the question. The question was whether he was aware of the test at the relevant points in this case and that plainly at the Trial, he was not.
• This was a significant failing which amounted to “improper, unreasonable, or negligent conduct” such that the jurisdiction to make a wasted costs order was engaged.
• In considering whether Mr Jamil should have acted as an expert witness at all in the case, it was found that he was “not a very good expert” but that was not enough to warrant the making of a wasted costs order.
• However, from November 2017, the point at which Mr Jamil went on sick leave from his clinical practice, he should also have stopped acting as Medico-Legal expert.
• From reading the papers, it seemed unlikely the Claimant would have succeeded with her claim. Therefore, had Mr Jamil stopped acting in the matter, it may very well have been that no other expert would have supported the claim, at which point the Claimant would have discontinued the claim and the Defendant would not have incurred costs thereafter.
• Wasted costs orders must only be made in exceptional circumstances and are not intended to be punitive, or to send a message. However, experts must understand the importance of their duties to the Court and the potential consequences if they fail in them.
• The consequences in this case were that the Claimant had lost the entitlement to have her case tried on the merits. Considerable court time was wasted, and a public body had incurred significant costs.

A wasted costs order in the sum of £88,801.68 was awarded, plus the Defendant’s costs of pursuing the application.  This represented the costs incurred by the Defendant from November 2017 through to conclusion of the Trial in March 2018.

Summary:

This case highlights the importance of Medico-Legal Experts duties to the Court and the potential consequences when they fail in those duties.

Input and advice on costs schedules was received from costs lawyer Aaron Vodden, part of Joanne Middleton’s costs team here at Hempsons.