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Costs Orders and Experts

Nisha Bambhra, barrister at Garden Court Chambers, considers the implications for expert witnesses who fail to comply with court orders.

















Nisha Bambhra
, barrister, Garden Court Chambers


Cost orders in private children law proceedings are relatively rare and in cases concerning non-parties they are exceptional.

The case of ABCDEF (Fact-Finding: Honour-Based Violence) 2019 EWHC 406, concerned the father's application for a child arrangements order to spend time with his son, Child D. The mother opposed the father's application, asserted that she was at risk of honour-based violence and claimed that she had been the victim of domestic abuse at the hands of the father and the paternal family.

HHJ Bellamy, sitting in the Family Court in Derby, initially heard the matter and during earlier proceedings, gave permission for an expert in honour-based violence to be instructed. The matter was later transferred to the High Court and heard by Mr Justice Keehan who made various case-management directions including a direction that an addendum expert report ought to be prepared.  Regrettably, the expert on multiple occasions failed to comply with the court's case-management direction.  

The parties subsequently made an application for wasted costs against the expert on the basis that her failure had resulted in two unnecessary hearings taking place on 2nd and 10th October 2018. The expert, in her response to the application, claimed that she had not been in a position to comply with the court's order due to ill health; however, she conceded that there were no good reasons for the court not to make an order.


The Law

Section 51(1) and (3) of the Senior Courts Act 1981 provides that "subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in—

(a) the civil division of the Court of Appeal;

(b) the High Court;

(ba) the family court and

(c) the county court,

shall be in the discretion of the court.

(3) The court shall have full power to determine by whom and to what extent the costs are to be paid".

Rule 46.2 of the Civil Procedure Rules 1998 states:

(1) "Where the court is considering whether to exercise its power under section 51 of the Senior Courts Act 1981 (costs are in the discretion of the court) to make a costs order in favour of or against a person who is not a party to proceedings, that person must –

(a) be added as a party to the proceedings for the purposes of costs only; and

(b) be given a reasonable opportunity to attend a hearing at which the court will consider the matter further.

(2) This rule does not apply –

(a) where the Court is considering whether to –

(i) make an order against the Lord Chancellor in proceedings in which the Lord Chancellor has provided legal aid to a party to the proceedings;

(ii) make a wasted costs order (as defined in rule 46.8); and

(b) in proceedings to which rule 46.1 applies (pre-commencement disclosure and   orders for disclosure against a person who is not a party)".

Rule 44.4 of the Civil Procedure Rules 1998 provides:

(1) "The court will have regard to all the circumstances in deciding whether costs were –

a. if it is assessing costs on the standard basis –

i. proportionately and reasonably incurred; or

ii. proportionate and reasonable in amount, or

b. if it is assessing costs on the indemnity basis –

i. unreasonably incurred; or

ii. unreasonable in amount.

(2) In particular, the court will give effect to any orders which have already been made.

(3) The court will also have regard to –

a. the conduct of all the parties, including in particular –

i. conduct before, as well as during, the proceedings; and

ii. the efforts made, if any, before and during the proceedings in order to try to resolve the dispute;

b. the amount or value of any money or property involved;

c. the importance of the matter to all the parties;

d. the particular complexity of the matter or the difficulty or novelty of the questions raised;

e. the skill, effort, specialised knowledge and responsibility involved;

f. the time spent on the case;

g. the place where and the circumstances in which work or any part of it was done; and

h. the receiving party's last approved or agreed budget".

Rule 46.2 of the Civil Procedure Rules 1998 further appends, "where the Court is considering whether to exercise its power under section 51 of the Supreme Court Act 1981 (costs are in the discretion of the Court) to make a costs order in favour of or against a person who is not a party to proceedings –

(a) that person must be added as a party to the proceedings for the purposes of costs only; and

(b) he must be given a reasonable opportunity to attend a hearing at which the Court will consider the matter further"

Rule 28.1 of the Family Procedure Rules 2010, in particular, provides, "the Court may at any time make such order as to costs as it thinks just".

Balcombe LJ, in Symphony Group plc v Hodgson [1994] QB 179, observed:

"In my judgment the following are material considerations to be taken into account, although I do not suggest that there may not be others which are relevant.

(1) An order for the payment of costs by a non-party will always be exceptional…

(2) It will be even more exceptional for an order for the payment of costs to be made against a non-party, where the applicant has a cause of action against the non-party and could have joined him as a party to the original proceedings…

(3) Even if the applicant can provide a good reason for not joining the non-party against whom he has a valid cause of action, he should warn the non-party at the earliest opportunity of the possibility that he may seek to apply for costs against him. At the very least this will give the non-party an opportunity to apply to be joined as a party to the action…

(4) An application for payment of costs by a non-party should normally be determined by the trial judge…

(5)  The procedure for the determination of costs is a summary procedure, not necessarily subject to all the rules that would apply in an action…"

Peter Smith J in the case of Phillips v Symes (No 2) [2005] 1 WLR 2043 said:

"… I do not consider that the susceptibility of expert witnesses to disciplinary proceedings or to wasted cost orders weakens the case for immunity from civil suit, in so far as this case exists. The principal argument advanced for immunity from civil suit is that the risk of being sued will deter the expert witness from giving full and frank evidence in accordance with his duty to the Court when this conflicts with the interests of his client. In so far as a witness may be tempted to trim his sails to suit his client, I would expect the risk of disciplinary proceedings or of a wasted costs order to be a deterrent. …"

Lord Brown in Dymock Franchise Systems (NSW) Pty Ltd v Todd & Ors (No.2) (New Zealand) [2004] UKPC 39, opined:

"Although costs orders against non-parties are to be regarded as 'exceptional', exceptional in this context means no more than outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense".


Decision

Mr Justice Keehan held (at para 39) that although the expert had provided explicit details of her medical condition, "as a professional witness and accepting forensic work, the expert knows and knew only too well of her duty to the court and of the importance of filing reports on time. If her health was such that she could not be sure that she would be able to comply with court orders, she should frankly not have accepted instructions to be a forensic expert witness". He concluded that the expert had "serially" failed to comply with orders and went on to find no cogent reason as to why the expert should not be named in judgment.


Commentary

Practitioners will be all too aware that it is not uncommon for fact-finding and/or final hearings to be adjourned and/or delayed due to the late filing of evidence from parties and non-parties. This case however is a reminder to experts that as 'professional witnesses' they have a duty to the court to assist it in accordance with the overriding objective and this includes filing their reports in accordance with the court's timetable (Practice Direction 25B). It also serves as a warning to experts that where there are "serial" failures to comply with directions, the consequences are not only an award of costs against them but also the possibility of being named in the judgment which could potentially result in reputational damage.