Kerry Underwood

INDEMNITY COSTS DUE TO EXPERTS’ CONDUCT

with 2 comments


In The Governors and Company of the Bank of Ireland (1) and Bank of Ireland (UK) PLC (2) v Watts Group PLC [2017] EWHC 2472 (TCC)

the Technology and Construction Court ordered that the costs incurred as a result of the conduct of the Claimant’s expert be assessed on the indemnity basis.

The court said that it was particularly critical of the Claimant’s expert quantity surveyor who gave evidence on behalf of the bank and had “grave concerns about his evidence.”

The court took the opportunity to review the case law in relation to conduct so bad that it warrants indemnity costs orders.

The court concluded that there is authority for the proposition that where a court concludes that the conduct of an expert should be marked in the Costs Order, it may be appropriate to order that the specific costs generated by that expert should be assessed on an indemnity basis – see

Balmoral v Borealis [2006] EWHC 2531 (Comm) and

Williams v Jervis [2009] EWHC 1837 (QB).

“Accordingly, I consider that the costs of the Defendant’s QS expert, Mr Whitehead, should be assessed on an indemnity basis, as should the costs of and occasioned by Mr Vosser’s oral evidence at the trial.”

Comment

There is a view that experts have got away with it as far as the extension of fixed costs is concerned, as, alone, their costs remain unfixed and uncapped.

However, there is increasing evidence that the courts are looking at experts’ fees and conduct much more closely than in the past.

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Written by kerryunderwood

October 17, 2017 at 9:06 am

Posted in Uncategorized

2 Responses

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  1. So won’t expert witnesses stop doing the work? Most of them seem to have lots of other stuff they can do.

    Jan Stewer

    October 18, 2017 at 9:08 am

    • Unlikely. Many experts do little else apart from prepare reports and give evidence. For others it is still very lucrative work. In most other jurisdictions there is far less use of experts. I sat as an Employment Tribunal judge for 8 years, often dealing with personal injury claims, and only twice ordered expert reports.

      Kerry

      kerryunderwood

      October 18, 2017 at 9:56 am


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