In a landmark case, and what is considered to be a legal first, Giles Colin, instructed by Leona Beaumont of Hempsons Manchester, has secured a Wasted Costs Order of £88,801.68 against a Consultant Spinal Surgeon and Medico-Legal Expert.

The Claimant brought a clinical negligence claim against the Hospital managed by Lancashire NHS Foundation Trust.  The Trial was heard on 11/12 March 2019.  The Claimant relied upon this expert’s evidence in the form of written reports and oral evidence at the Trial.  At the Trial, the judge described the expert as “wholly unable to articulate” the legal test in respect of Breach of Duty in Clinical Negligence cases, despite many opportunities to do so.  The Claimant had no real choice but to discontinue her claim given that this was the only expert she relied on.

The Defendant Trust pursued a Wasted Costs Order against the expert, arguing that he was not competent, generally, for the case, given that he had conducted the surgery about which complaint was made only twice and under supervision; that he was not aware of the correct legal test (Bolam/Bolitho) to be applied in clinical negligence cases; and, that he was unfit to act as an Medico-Legal Expert because he had been suffering from psychiatric illness that caused him to commence sick leave from November 2017 and to retire from clinical practice in early 2018.  The Claimant and her Solicitors were unaware of these latter facts.

In her Judgment, HHJ Evans was highly critical and described him as “comprehensively failing” in his important and significant duties to the Court as an Expert. HHJ Evans found that the improper, unreasonable, and negligent, conduct of the expert caused the Defendant Trust to incur all of its costs from November 2017.

The sum of £88,801.68 awarded represented the costs incurred by the Defendant Trust from November 2017 through to the conclusion of the Trial in March 2019.

Judgement available here. Also featured by The Law Society Gazette here.