Experts opining on subjects outside their specialism risk being hit with a third-party costs order, as David Locke & Giles Colin explain
- Two recent decisions have seen a third-party costs order made against an expert in clinical negligence litigation.
- The judgments serve as a warning that experts must ensure that they only accept instructions on matters within their specialist areas of expertise.
Claims in alleged clinical negligence can be neither pursued, nor defended, without the involvement of medico-legal experts. When contested claims discontinue, or settle, at a late stage, it is frequently because previously supportive experts have revised their opinions—sometimes as a result of discussions with their counterparts, sometimes of their own accord. That is usually perfectly appropriate and in keeping with their duty to the court.
The small number of cases that proceed to liability trials do so because the parties’ experts maintain opposing opinions and, again, although ultimately one opinion will be preferred over the other, that does not of itself imply any criticism. However,
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