The DACB Scotland med-mal team recently repelled the cost of an expert report after they successfully argued that it had been unreasonably instructed by the Claimant.
This was a clinical negligence case, featuring allegations against a maxillofacial surgeon arising from an elective cosmetic procedure. Upon the basis of expert evidence presented by the Claimant's expert plastic surgeon, it became necessary to settle the claim.
When it came to 'certifying' experts (a necessary procedural step to allow expert costs to be recovered in Scotland) the Claimant included, in a rather underhand manner, an expert whose involvement the Defenders had no previous knowledge of. It turns out the Claimant had instructed an additional report from a Maxillofacial Surgeon expert but a copy was never provided to the Court or, indeed, other parties in the litigation.
The test for certifying experts in Scotland is two fold
- The Court must be satisfied that the expert is suitably qualified and
- Their instruction has to be reasonable (to be measured at the material time of the instruction.) As frustrating as it may seem, a party's failure to present or rely on an expert report does nothing to forfeit recoverability of the fee paid for it.
Obviously, it’s inherently difficult to consider the reasonableness of a report which you have never seen. Depending on economics, it can be the case that the argument is disproportionately complex and risky when placed against the overall value of a case. However, in this case, the cost of the expert report was £5,500 which was also unreasonably expensive against the overall cost of settlement. Therefore, the circumstances of this case mandated a closer look.
The Claimant refused to produce their report but did provide the letter of instruction when asked. It quickly became clear that the Claimant had very much been 'expert shopping' and the maxillofacial surgeon was instructed to comment on precisely the same issues which the plastic surgeon had already provided input on. DACB advised on refusing certification and, if necessary, taking the point to an opposed motion. Gladly, the Claimant backed down and dropped that part of their motion. That resulted in a saving of £5,500 for the client with the Claimant's agents accepting that they would need to bear the cost.
This case illustrates the point the importance of double (and triple!) checking any settlement documents in Scotland, as parties may disappointingly attempt to 'sneak' experts in, even if you had no previous knowledge that they had even been instructed.
