A consultant who acted as an expert witness in clinical negligence proceedings has been ordered to pay £88,800 to cover the costs wasted as a result of his input.
Sitting at Manchester County Court, Her Honour Judge Claire Evans took the unusual step of punishing consultant spinal surgeon Firas Jamil after hearing he was ‘not generally competent as an expert’ and not fit to be giving evidence.
The defendant in Thimmaya v Lancashire NHS Foundation Trust sought the wasted costs order after Jamil was ‘wholly unable’ to articulate the test applied in determining breach of duty in a clinical negligence case. In the end, the consultant stated he did not know the test to be applied, and the claimant had no choice but to discontinue her claim.
Evans was reminded her role was not to fine Jamil to mark the court’s displeasure at his conduct, but she stressed that he owed important and significant duties to the court and ‘failed comprehensively’ in those duties.
The judge added: ‘Whilst it would not be right to use him as an example to send a message to experts, it is right that experts should all understand the importance of their duties to the court and the potential consequences if they fail in them.
‘The consequence for the claimant was that she lost her entitlement to have her case tried on its merits. A considerable amount of court time has been wasted. And there were significant consequences to the NHS in terms of costs.’
The court heard Jamil accept with hindsight he was not fit at the time of trial in March 2019 to give expert evidence due to his mental health problems. He submitted he was having cognitive difficulties, problems with his memory and concentration, and had not appreciated he was unfit to give evidence. He added that on the day of trial he had an adverse psychiatric reaction to the questioning of counsel for the defendant, who reminded him of an interrogator who had previously questioned him in Iraq.
The judge said Jamil had been asked by the claimant’s solicitors in 2017 to confirm his suitability as an expert. She said the consultant was not dishonest or deliberately misleading, but he should not have continued to act as an expert witness.
Evans noted there are ‘plenty of not very good experts around’ and cases where an expert gives an opinion where they lack relevant experience, but not all these experts should find themselves liable to pay wasted costs.
She expressed sympathy for Jamil’s personal position but concluded the balance came down in favour of the defendant’s application for wasted costs.