Football fans are used to chanting at referees: “You don’t know what you’re doing”. Recently, a version of this happened in court to an expert witness. In January 2020, in Thimmaya v Lancashire NHS Foundation Trust, Her Honour Judge Claire Evans ordered a medical expert to pay a significant proportion of the defendant’s costs once the claimant dropped her clinical negligence claim after her expert was unable to articulate the legal test for breach of duty at trial.

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This is a highly unusual case in which the Lancashire NHS Foundation Trust, which was the Defendant to clinical negligence proceedings brought by Mrs Samantha Thimmaya, sought a third party costs order against Mr Jamil, Consultant Spinal Surgeon, who was the Claimant’s expert witness in those proceedings. In the course of being cross-examined at the trial the judge determined that Mr Jamil was wholly unable to articulate the test to be applied in determining breach of duty in a clinical negligence case. He was given a number of opportunities to explain it; he was asked the question in different ways; that did not assist him. In the end, he stated that he did not know the test to be applied. The Claimant then had no real choice but to discontinue her claim, he being the only expert upon whom she relied.
The judge was careful to say that such third-party costs orders should be made only in exceptional cases. (The Third Party Costs Application here describes the unusual circumstances in this case.)
Nonetheless, this ruling highlights how important it is for experts to know what they are talking about, and for them to remember, at all times, that their overriding duty is to the court, and not to those instructing them.

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