WASTED COSTS AGAINST EXPERTS AND FIXED COSTS

Fixed Recoverable Costs Extension: Autumn Course Details

Details of the courses are here, and can be booked here.

A reminder that the court has power to make wasted costs orders against experts and this jurisdiction is to be exercised on the same basis as a wasted costs order against a legal representative.

An example of this occurred in

Thimmaya v Lancashire NHS Foundation Trust and another, Manchester County Court, 30 January 2020, Claim No: B57YP861

where a Circuit Judge made a third-party costs order against an expert in the sum of £88,801.68 under section 51 Senior Courts Act 1981.

The expert who appeared for the claimant at trial “was wholly unable to articulate the test to be applied in determining breach of duty in a clinical negligence case”.

As a result, the claimant had to discontinue the case, and the defendant successfully obtained a third-party costs order against him.

The parties agreed, and the court accepted, that the court’s jurisdiction in such a matter is to be exercised on the same basis as a wasted costs order.

Fixed Costs Extension

It is likely that applications for wasted costs against experts will become far more common now that the Fixed Recoverable Costs regime applies to virtually all Civil Litigation valued at £100,000 or less.

The one unfixed element in the Fixed Recoverable Costs scheme is experts’ fees.

However, it is only the actual fees of the expert that are unfixed, and not costs of the solicitors and barristers in dealing with expert evidence.

Thus, the winning party recovers its legal costs on the Fixed Recoverable Costs basis but claims to have incurred significant extra and unnecessary costs due to the conduct of the other party’s expert.

Any additional fee incurred by the winning party’s own expert in dealing with the other side’s expert evidence is recoverable in any event, as that expert’s fees are unfixed, and the court can simply award a higher amount.

The successful party can claim a 50% enhancement on Fixed Recoverable Costs on the grounds of the unsuccessful party’s unreasonable conduct, and this replaces indemnity costs.

However, merely because an expert has behaved badly, it does not necessarily follow that the lawyers have behaved badly, and therefore, a wasted costs application against the expert directly is a way of the successful party recovering costs over and above Fixed Recoverable Costs.

It could also work the other way. A party loses and has to pay Fixed Recoverable Costs but claims that its own costs have been unnecessarily increased by the conduct of the expert for the winning party.

There is nothing to stop a losing party seeking a wasted costs order if the thresholds are met.