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Phillips & Others v Symes & Others, Chancery Division, 20 October 2004

4 November 2004
The issues

Expert – Duty Of Expert To Court – Whether Expert Could Be Joined As A Respondent For Costs Purposes

The facts

This case concerned an action by administrators attempting to realise the asset of a business in the face of opposition from Mr Symes who had been a Partner in the business. His Partner had died. A Doctor had written a report alleging that as a result of a stroke that Mr Symes had suffered, he lacked mental capacity. The administrators brought proceedings for the purposes of deciding whether or not Mr Symes did have capacity and the Doctor was called by the official solicitor to assist the Court.

The Judge ruled that Symes did have capacity and administrators sought to join the Doctor as a Respondent for the purposes of costs.

The decision

In appropriate circumstances a third party Costs Order could be brought against somebody who was a witness as a result of the manner in which he gave evidence. Symphony Plc v Halvanto Kitchens Ltd followed (That case was a decision of the Court of Appeal in 1993 and under the old Rules laid down the basic principal that applications for costs against non parties were to be treated with caution and that such orders would be the exception and not the rule).

It might be a denial of justice to fail to warn someone that their evidence could lead to a costs application but whether such a warning should be given and in what manner should be approached on a case by case basis. For example, in respect of legal representatives there was no real reason to warn them of the potential exposure to a wasted costs order. At the other extreme were lay witnesses. In between the two were experts and the only warning in such cases that was necessary was the one set out in the CPR and the declaration that an expert should sign. In the light of those matters an expert could be expected to be alive to potential adverse consequences if he breached his duty to the Court.

The level of proof required to establish a breach was high – namely recklessness or gross dereliction of duty.

It would be wrong however for the Court to remove from itself a power to make a costs order in appropriate circumstances against an expert who by his evidence caused significant expense to be incurred and did so in flagrant and reckless disregard of his duties to the Court.

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