Colm Nugent successful in defending expert from adverse costs order application

Valuable guidance on the approach to claims against experts (s51 of the Superior Courts Act, CPR 46.2 and CPR 35)

A judge in Manchester has recently handed down judgment in a decision concerning the liability of an expert witness for wasted costs.  The expert was joined to the proceedings following judgement, in accordance with CPR 46.2. The expert instructed Sian Morgan of RPC, Bristol to represent him; who in turn instructed Colm Nugent to act for the expert.

Colm had considerable experience of these applications having represented medico-legal experts previously in such matters.

Following a two-day hearing of the application; the judge dismissed the application brought by TUI, arising out of the expert’s evidence in a holiday sickness claim.

The lengthy decision affirmed the threshold test for such claims made under CPR 46.2 as determined by Peter Smith J. in Phillips v Symes (2004) and declined to follow the recent decision in Thimmaya v Lancashire NHS (2020).

Colm says of the decision:

“The case provides valuable guidance for anyone contemplating such an application or those affected by it as to the threshold test, the correct procedure and the necessary evidence.   As a consequence of this decision, it has been recognized that expert witnesses are not to be treated the same as third party funders, directors or even solicitors in considering whether a third-party costs order is appropriate.”