Robinson v Liverpool University Hospitals NHS Foundation Trust & Dr Chris Mercier is an important development for all practitioners who instruct experts and even more important for experts themselves!

The case is reported by barrister Gordon Exall who includes a link to the judgment –

On the face of it, this was a straightforward dental negligence case.

Dr Mercier gave evidence for the claimant by remote link. He is a General Dental Practitioner. The allegations of negligence were made against Mr Bajwa, an oral and maxillo-facial surgeon. This became the heart of the problem. Dr Mercier held himself out as an expert witness. During his evidence he admitted that he had not carried out an extraction under General Anaesthetic for over 20 years. He also conceded that the Defendant’s expert, Keith Webster, a Maxillo-Facial surgeon was ‘better placed’ to give expert evidence in the case.

The claim was withdrawn following Dr Mercier’s evidence.

The whole of the Claimant’s case was built around this evidence which is why it was not viable to continue. Not only was he the inappropriate expert, but the defendant also highlighted 15 failings in his evidence including that he had failed to consider the evidence properly until the trial itself.

The Defendant applied for a third party costs order against the expert under s51 Senior Courts Act 1981. It was necessary for the defendant to prove that there was a causal link between the conduct of the third party. The court found that the claim against the trust could not have been pursued without the evidence from Dr Mercier. The Particulars of Claim were largely based on his report. Recorder Hudson found –

“I am entirely satisfied that but for Dr. Mercier’s report this claim would not have been brought. All costs claimed within the Defendant’s cost budget are therefore caused by Dr. Mercier’s flagrant disregard for his duty to the court.”

Dr Mercier was ordered to pay £50,543.85.

The lesson is clear. When instructing experts, make sure that his expertise and experience match those of the person who is facing criticism.

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