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Third Party Cost Order Against Expert Witness Overturned on Appeal: Robinson v Liverpool University Hospitals Nhs Trust [2023] EWHC 21 (Kb) - Grace Corby, Temple Garden Chambers

24/02/23. The first instance Judge had erred in making a third-party costs order against the Claimant’s expert in a clinical negligence claim


The Claimant had brought a clinical negligence claim against the defendant NHS trust following a dental extraction procedure which she underwent on 8 November 2016. She alleged that the surgeon was negligent for failing to remove her upper left molar. She instructed Mr Mercier, the appellant, as her expert. He was a general dental practitioner, but not a maxillofacial surgeon.

Following the first day of trial, it was accepted that the central issue in the case was whether or not a reasonable body of dental surgeons would have concluded, during the course of the surgery, that the upper left molar tooth was restorable based on the information available at the time. When the appellant gave evidence, he conceded that it was not unreasonable of the surgeon to err on the side of caution during the surgery and leave the tooth in place. Following that evidence, the claimant withdrew her claim.

The Respondent then made a successful Third Party Costs Order (“TPCO”) against Mr Mercier in the sum of £50,543.85. The basis of the application for costs was that Mr Mercier was the wrong expert to give expert evidence and should have appreciated that, either at the outset or during the course of litigation: as a General Dental Practitioner, he should not have been expressing an expert opinion on the standard of care afforded to the Claimant by...

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