I often wonder if I bombard my experts with too much irrelevant paperwork they have to take the time to sift through to extract relevant materials. The below case is an example that more is definitely better than less; the latter could lead to costly consequences.
This is a holiday sickness claim. The claimant travelled to Egypt with her partner and daughter in September 2013. Plexus acted for the defendant tour operator. The claim was pleaded at £5,000. The claimant’s expert always opined that the claimant had post infective IBS. The claimant applied, late, to increase the value of her claim to £50,000 due to the gluten free diet she now required for life. The application was heard the day before the fast track trial in November 2017. It was successful, the trial was vacated and the matter reallocated to the multi-track. The defendant was given permission to seek its own report from a gastroenterologist.
On the morning of the 1st day of the 2 day multi-track trial in June 2018 the claimant, following information she had told her counsel that morning, immediately abandoned her claim for gluten free food slashing the value of the claim. The claimant and her partner (not a claimant) gave evidence on day 1. The partner stated he had become ill before the claimant; a fact provided in his witness statement.
The gastroenterologists were to give evidence on day 2. At the start of day 2 the claimant sought an adjournment to allow her expert time to consider the partner’s evidence from day 1 as the expert had not previously had sight of the partner’s statement. The judge refused. Counsel confirmed, orally, that the claimant therefore discontinued as the expert was unable to support the claim. The expert then stated there had been a misunderstanding between the expert and counsel and that the claimant should not have discontinued, counsel sought to reinstate the claim. After lengthy submissions as to whether setting aside the discontinuance was a) required (a formal written notice had not been served) or b) possible (the judge had already started to draft an order), resulting in the claimant’s counsel almost collapsing in the courtroom, it was held the matter could be reinstated. There was insufficient time to hear the experts and the matter went part heard. The parties were to file dates to avoid.
The claimant’s solicitor failed at each juncture to provide dates to avoid. In October 2018 the defendant applied to strike out the claim. Before the application was listed, the claimant applied to rely on a new expert passing blaming onto the previous expert for failing to adequately consider all of the evidence. A hearing was listed in March 2019 to deal with both applications. Hearing the defendant’s first, the matter was duly struck out and the claimant’s solicitor, counsel and original expert were each ordered to serve a witness statement to show just cause why they should not liable for the Defendant’s wasted costs.
Witness statements were served, and the defendant made an application against the claimant’s solicitor and the expert for wasted costs on the basis that either a) the claimant’s solicitor failed to provide the expert with all the relevant evidence prior to the trial or b) the expert had failed to adequately consider all the evidence supplied.
The wasted costs hearing took place in September 2019. The judge awarded the defendant its wasted costs from the claimant’s solicitor (therefore QOCS does not apply). Wasted costs as a result of the reallocation to multi-track were awarded. It was held that £16,000 had been incurred as a result of the claimant unreasonably adding the gluten free diet to her schedule. The judge also awarded the defendant’s costs of the strike out and wasted costs applications.
The judge did not initially award the wasted costs of the adjourned trial in June 2018 even though he held that the expert had not been sent the witness statement. He held that this had not made any difference. Whilst the judge was handing down his judgment counsel for the defendant successfully changed the judge’s mind in this regard and submitted this was plainly wrong. By the claimant’s solicitor’s own admission, had the expert adequately considered the witness statement (which they had always alleged he was in possession of) it is likely the matter would have been discontinued. After some time to reflect, the judge agreed, and the defendant was also awarded its costs of the adjourned trial.
Total costs awarded to defendant: £55,700.71.
The point to take away; always ensure your experts are fully furnished with all relevant materials, even after service of their report.
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Claire Scargill, Associate Partner
T: 020 7220 5930 | E: firstname.lastname@example.org