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|Neutral Citation Number:  EWHC 2330 (Ch)
|Case No: HC0100810
IN THE HIGH COURT OF JUSTICE
|Royal Courts of Justice
Strand, London, WC2A 2LL
|20th October 2004
B e f o r e :
THE HONOURABLE MR JUSTICE PETER SMITH
| (1)Jonathan Guy Anthony Phillips
(2) Robert Andrew Harland
(suing as Administrators of the Estate of Christo Michailidis)
(3) Despina Papadimitriou
|- and -
|(1) Robin James Symes (a bankrupt)
(2) Robin Symes Limited (in administrative receivership)
(3) Jean-Louis Domercq
(4) Frieda Nussberger
(5) Philos Partners Inc.
(6) Geoff Rowley and Kevin Hellard (trustees in bankrucptcy of the 1st Defendant)
|And in the matter of an issue ordered to be tried between:
|Robin James Symes (a bankrupt)
|- and -
|(1) Jonathan Guy Anthony Phillips
(2) Robert Andrew Harland
(suing as Administrators of the Estate of Christo Michailidis)
(3) Langshaw Kyriacou (a firm)
(4) Baker & McKenzie (a firm)
(5) Lovells (a firm)
(6) Peters & Peters (a firm)
(7) Bracher Rawlins (a firm)
(8) Geoff Rowley and Kevin Hellard (trustees in bankruptcy of Robin James Symes)
(9) Robin James Symes Limited In Liquidation
Mr A Steinfeld QC, Mr J Stephens and Miss J Chappell (instructed by Messrs Lane & Partners) for the 1st and 2nd Claimants and 1st and 2nd Respondents
Mr J Fenwick QC and Miss L A Mulcahy (instructed by Messrs Manches) for the 10th Respondent
Hearing dates: 12th October 2004
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Peter Smith :
- This judgment arises out of the hearing that took place on Tuesday 12th October 2004.
- The hearing is to determine preliminary issues raised in a claim brought by the Claimants in the original action ("the Administrators") against Dr Zamar ("Dr Zamar"). If the application proceeds there will have to be a further substantive hearing as against Dr Zamar to determine whether he has committed any breach of any duty as alleged by the Administrators and if so the extent of such a breach and what orders should be made as a result thereof. I stress that at this stage there is no question of the Court making any determination on those matters, although as appears from this judgment the Court was clearly of the preliminary view that the Administrators had raised a case, which at least had the prospect of success based on the material then known. That is not however to suggest that the decision can be prejudged, nor can it be said that the Court has come to a final decision, absent representations of Dr Zamar and any evidence that he might seek to deploy in the second stage.
- The application arises out of my determination on 30th July 2004, that Mr Symes, the First Defendant, did not lack mental capacity on any of the issues as specified in paragraph 2 of my order of 25th March 2004 ("the Issues").
- As a result of my judgment on 30th July 2004 the Administrators applied for Dr Zamar to be joined to the proceedings as a Respondent to the Issue pursuant to CPR 48.2 for the purpose of costs only.
- On a separate occasion I determined the costs issues as between the Administrators and the other Respondents ("the Solicitor Respondents").
- The Administrators complied with the subsequent paragraphs arising from the joinder of Dr Zamar, by serving a letter with the judgment intimating any claim, serving a Points of Claim and the refixing of further consideration of that application before me. The present judgment arises out of that refixing.
- I refer to my Judgment of 30th July 2004  EWHC 1887 (Ch) and the earlier Court of Appeal judgment 13th October 2003  EWCA Civ 1452, which sets out the background to the present dispute.
- At the hearing of the Issue, Dr Zamar gave evidence effectively on behalf of Mr Symes (together with Dr Green). He was not formally called by Mr Symes as he did not attend; he was called by the Official Solicitor acting as Amicus Curiae to the Court to assist the Court in determination of the Issue. It is not suggested that anything significant turns on that. In any event Dr Zamar had provided reports to Messrs Bracher Rawlins solicitors at the time for Mr Symes and as part of that exercise had produced an expert's report, which he duly signed containing the appropriate declarations required by CPR 35 and CPR 35 PD.
THE ADMINISTRATORS' CLAIM
- The claim against Dr Zamar is set out in the Amended Points of Claim dated 8th October 2004.
- After reciting the lead into Dr Zamar giving evidence, they set out (and this is admitted) that Dr Zamar at all material times was a consultant psychiatrist (paragraph 4), as such a psychiatrist he was or ought to have been fully aware of the gravity of any opinion expressed by him that a person was incapable by reason of mental order of managing his own affairs and that any such opinion expressed by him in relation to a party to litigation would inevitably lead to a judicial investigation as to whether such person was or had been in the past capable of instructing solicitors.
- He also admitted that on 12th September 2003 he was instructed by Bracher Rawlins to examine Mr Symes and that he examined him on 16th and 27th October 2003 and produced a letter report and subsequent reports dated 23rd October 2003 and a signed written report dated 26th October 2003 (signed 28th October 2003) ("the Report").
- By his report he recommended that Mr Symes was not fit to provide evidence, to go through cross-examination or to give reliable accounts about past present and future events and that he was unable to manage his own affairs including his medical care and that he recommended that Court of Protection proceedings ought to be considered.
- It is important for the context of such opinion to be considered. Dr Zamar (like all the other medical experts who were before me in respect of the Issue) acknowledged that the sole potential cause of any mental deficiency on the part of Mr Symes derived from a stroke that he had in 1980. It will be seen therefore that the primary thrust of Dr Zamar's opinion was that Mr Symes had been incapable of managing his affairs since 1980; a very serious opinion to express. Quite apart from the impact on the proceedings (as to which see my judgment on the Issue) potentially it had the ability to call into question Mr Symes' capacity to effect any transaction or to do anything since 1980. The consequences therefore were likely to be dramatic and severe, not only as regards Mr Symes, but also as regards the Administrators and the Solicitor Respondents. All of this was occasioned by Dr Zamar's report initially, and supported by that of Dr Green. Although Dr Green's report was equally criticised by me in the judgment on the Issue, the Administrators had not thought it appropriate to make any claim against him. Once again that is not relevant for the purposes of the determination of the matter presently before me although it might well be relevant if there is to be an investigation into Dr Zamar's potential liability.
- The key claim by the Administrators (paragraph 11) is:-
"[Dr Zamar] was to his knowledge under a duty to assist the Court on matter within his expertise and in particular to adhere to the following duties and the following matters:-"
(1) The duty to provide an objective unbiased opinion.
(2) The duty to consider all material facts including those which might detract from his opinion and to avoid selecting and relying only the materials supporting his opinion.
(3) The duty to avoid assuming the role of advocate.
(4) The duty to consider and if appropriate make clear to the Court if and whether he had been unable to reach a definite opinion, because of insufficient information (including a positive duty to consider whether he had sufficient information).
(5) A duty to inform the other parties and the Court of any change of opinion on any material matter and whether or not his fees had been paid to file a written request for directions pursuant to CPR 35.14".
- The Administrators assert (paragraph 12) that (1) in discharging the duties Dr Zamar was under a duty to act properly and responsibly with regard to the matter under consideration, (2) that if Dr Zamar concluded that Mr Symes was not capable the Court would investigate and finally (3) that legal costs would be incurred if he were to express an opinion that Mr Symes was incapable of managing his affairs.
- That latter point of course arises from the fact that the Administrators, even though they were successful on the Issue, face grave difficulties in making any effective recovery of the costs against Mr Symes. He is bankrupt and the only assets which are available are the partnership assets which have to be located, identified, sold and distributed to discharge the partnership debts, and Mr Symes' debts. As regards creditors the queue is formidable and ever changing. For the moment it is right to assume that the Administrators will not make any effective recovery of their costs against Mr Symes.
- I should say that I do not accept Dr Zamar's duty ought to change depending on the status of his client. He has an objective duty (as I shall set out in this judgment) to comply with the Expert Duties that are imposed by the Court. Whether or not the consequences might be more severe or whether or not another party might be adversely affected because of the impecuniosity of his client are not factors, in my judgment, which should cloud his overriding duty to give his true professional opinion which ought to be unfettered from any such factors. It is undoubtedly the case that his opinion had serious consequences, but merely because it had serious consequences should not in my judgment lead him to conclude that he can deliver his opinion and attempt to discharge his duty in any other different way. To this extent I accept Mr Fenwick QC's submission in that regard.
THE ALLEGATION OF FAILURE OF DR ZAMAR
- The key paragraph is paragraph 15 where the Administrators allege that in forming his opinion and preparing his reports he acted "in serious breach of his duties to the Court by acting recklessly, irresponsibly and wholly outside the bounds of how any reasonable psychiatrist preparing an opinion for the Court could properly have acted having regard to such duties".
- Five particulars are given:-
"(1) Dr Zamar formed his initial opinion on a wholly inadequate basis having examined Mr Symes for just one hour and having considered-
(a) by way of factual material only the documents sent to him by Bracher Rawlins on 12th September 2003, which did not include any evidence of how Mr Symes had in fact been functioning in the 20 plus years after his stroke, and
(b) a report of Dr Morris, a consultant psychologist, which made clear that she had not carried out any tests designed to expose lack of effort or simulation on Mr Symes' part.
(2) Dr Zamar did not consider the manner in which Mr Symes had actually been able to conduct his business and legal affairs since his stroke in the early 1980's and did not for that purpose make any or any proper enquiries not did he ask to be provided with relevant information from Mr Symes' former employees and/or from solicitors who had been acting form him.
(3) Despite his duties to the Court and the letter from Lane & Partners dated 8th March 2004 referred to above, and despite paragraphs 3, 4 and 8 of the declaration he had first signed on 28th October 2003 and again signed on 28th January 2004, Dr Zamar refused to reconsider his opinion in the light of the further material sent to him under cover of that letter or even look at that material despite its relevance having been drawn expressly to his attention and the intimation that the Court would be assisted by such consideration. Instead he persevered with his initial opinion and at the trial of the Issue verified his reports of 26th October 2003 and 28th January 2004. When at the direction of the Judge during the course of the trial he did eventually consider the material in SJE28 and SJE29 he was forced to accept that Mr Symes was capable of managing his affairs and that his original opinion could not be sustained.
(4) In verifying his two reports as his evidence in chief Dr Zamar failed to act in conformity with paragraphs 3, 4 and 98 of the said declarations in that -
(a) he could not properly have regarded himself as having "mentioned all matters which I regard as relevant to the opinions I have expressed" as there was material he knew was or might be relevant which he had not considered;
(b) he could not properly have regarded himself as having "drawn to the attention of the court all matters, of which I am aware, which might adversely affect my opinion" as there was material he knew was or might be relevant which he had not considered and which accordingly might have affected adversely his opinion (and which in due course it did); and
(c) he could not properly have regarded himself as having properly complied with his duty to notify "those instructing [him]" or implicitly the court in respect of the requirement for correction or qualification of is report, as such the existence of such a requirement necessarily implied consideration by Dr Zamar of any new material made available to him which he knew was or might be relevant.
(5) having adopted a position as set out in his first report of 26th October 2003 Dr Zamar thereafter ignored and disregarded any evidence or material which was inconsistent and instead actively tried to find material to support his position and assumed a role as an advocate for Mr Symes".
- It is fair to suggest that the particulars have more of an appearance of an allegation of negligence, but Mr Steinfeld QC, who appears for the Administrators acknowledges that mere negligence is not sufficient to ground (he submits) a liability on the part of Dr Zamar.
HOW THE DUTY ARISES
- The Administrators claim can be shortly summarised although it will require greater elaboration in this judgment. They say that Experts owe duties to the Court in the manner in which they give evidence. They are required to assist the Court and in so doing they are required to behave objectively and not be partisan or as said elsewhere "hired guns of" the parties. They are required therefore to put themselves above prosecuting a case for the benefit of a client.
- If they act in flagrant disregard of that duty, the Administrators say that has a number of consequences. First they can be said (depending on the level of the dereliction of their duties) to be in contempt of court or may even be guilty of perjury. Second, in an appropriate case their costs could be disallowed either as between their client and another party to litigation, or even as between a client and themselves. Third, they can be referred to an appropriate professional body by the Court for disciplinary action. However, the Administrators say those actions are all very well, but none of them provides a sanction that is effective to compensate the true victim of any such action, namely other parties.
- They say therefore that with the development of the law in relation to the ability to order non parties to an action to pay costs it is now right and proper that the ability of the Court to order Experts to pay compensation to parties who have suffered loss by reason of their gross dereliction of their duties should be affirmed. The Administrators acknowledge that there is no decision which has held an expert witness so to be liable. This might be said to be somewhat surprising given the plain fact that it can be argued that the Experts' duties have long been known and have only recently been elaborated, as opposed to created (for example), in CPR 35. There has so far as the research of the parties has been able to discern, been only one case where a witness has been ordered to pay costs of a party; see Locabail (UK) Limited –v- Bayfield Properties Limited [unreported] 20th December 1999 (a decision of Mr Lawrence Collins QC as he then was sitting as a deputy Judge of the Chancery Division).
- Nevertheless, the Administrators submit that the liability of the Experts should be regarded as being strongly analogous to that of (for example) advocates who have long been subject to sanctions as regards wasted costs. As can be seen from this judgment part of the difficulty with the Administrators' submissions is the collision of that principle with the undoubted general immunity of a witness from suit in respect of any evidence that he has given (or any reports or statements which he has done in preparation for his giving of evidence). The Administrators submit that just like the decoupling of the immunity of an advocate from a liability to pay wasted costs (see Ridehalgh –v- Horsfield  Ch 205) so equally the immunity of an expert as a witness has nothing to do with a potential liability to be the subject matter of a claim for costs under section 51 of the Supreme Court Act 1981.
- The Administrators put the duty as being very closely similar to the duty (and sanctions) that were applied to Officers of Court for example, as summarised in Myers –v- Elman  AC 282 pages 317 – 319 and in particular page 319 as follows:-
"The underlying principle is that the Court has a right and a duty to supervise the conduct of its solicitors, and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally, as was said by Abinger C.B. in Stephens v. Hill. (1) The matter complained of need not be criminal. It need not involve peculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor's duty to ascertain with accuracy may suffice. Thus, a solicitor may be held bound in certain events to satisfy himself that he has a retainer to act, or as to the accuracy of an affidavit which his client swears. It is impossible to enumerate the various contingencies which may call into operation the exercise of this jurisdiction. It need not involve personal obliquity. The term professional misconduct has often been used to describe the ground on which the Court acts. It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to the Court and to realize his duty to aid in promoting in his own sphere the cause of justice. This summary procedure may often be invoked to save the expense of an action. Thus it may in proper cases take the place of an action for negligence, or an action for breach of warranty of authority brought by the person named as defendant in the writ. The jurisdiction is not merely punitive but compensatory. The order is for payment of costs thrown away or lost because of the conduct complained of. It is frequently, as in this case, exercised in order to compensate the opposite party in the action."
- Mr Steinfeld QC in the course of his submissions described Experts as being "quasi Officers of Court" and he submits that in the modern world, bearing in mind in particular their unique duties to the Court it ought to have an effective sanction capable of being imposed upon them. One difficulty in this argument of course is that the present action is only necessary because of the impecuniosity of Mr Symes. In an ordinary case the Administrators would recover their costs from the other litigant. Why in effect should the Expert have to underwrite his client's solvency?
NATURE OF DUTY
- The duties of an Expert were first marshalled together and summarised in the case of National Justice Compania Naviera SA –v- Prudential Assurance Co. Limited ("The Ikarian Reefer")  2 Lloyd's Rep 68 pages 81-82:-
"B. THE DUTIES AND RESPONSIBILITIES OF EXPERT WITNESSES
The duties and responsibilities of expert witnesses in civil cases include the following:
1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation (Whitehouse v. Jordan,  1 WLR 246 at p. 256, per Lord Wilberforce).
2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise (see Polivitte Ltd. v. Commercial Union Assurance Co. Plc.,  1 Lloyd's Rep. 379 at p. 386 per Mr. Justice Garland and Re J,  F.C.R. 193 per Mr. Justice Cazalet). An expert witness in the High Court should never assume the role of an advocate.
3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion (Re J sup.).
4. An expert witness should make it clear when a particular question or issue falls outside his expertise.
5. If an expert's opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one (Re J sup.). In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report (Derby & Co. Ltd. and Others v. Weldon and Others, The Times, Nov. 9, 1990 per Lord Justice Staughton).
6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side's expert's report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court.
7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports (see 15.5 of the Guide to Commercial Court Practice)".
- It will be seen that the duties are distilled from earlier cases going back to Whitehouse –v- Jordan  1 WLR 246.
- With the passing of the CPR those duties were amplified in CPR 35. Thus the duty of the Expert is to help the Court on matters within his expertise and this duty overrides any obligation to the person from whom he has received his instructions or by whom he is paid (CPR 35.3). Significantly the CPR introduces the concept of a single joint expert, which emphasises in my view this over arching duty to the Court beyond that of the witness. Under CPR 35.10 an experts report must comply with the requirements set out in the Practice Direction and the Expert must sign a statement (as did Dr Zamar) that he understands his duty to the Court and that he has complied with that duty.
- If an expert is in any doubt as to what he must do he can independently of his retainer file a written request for directions to assist him in carrying out his functions (CPR 35.14).
- Under the Practice Direction a separate statement of truth is required (35 PD 2.4) that the opinions are made from his own knowledge and that he believes them to be true and the opinions expressed represent his true and complete professional opinion.
- The expert is warned in the next paragraph (2.5) that the consequences of verifying a document containing false statements without an honest belief in its truth is set out in 32.14 (i.e. the potential for proceedings for committal for contempt of court).
- The note at 35.17 (5) to the White Book draws attention to the expert that the failure by him to comply with the rules or a Court order might result in the party who is instructing him being penalised in costs and even in extreme cases being debarred from placing the experts evidence before the court. There is no mention of the (presumably) even more extreme case of the Expert being required to pay himself the costs occasioned by his misconduct.
- Accordingly, Mr Steinfeld QC submits that either always or as the result of the clearly defined duties in CPR 35 an Expert has come under a duty to the Court and breach of that duty can be subject to the extreme sanctions summarised above, but also to the compensatory sanctions analogous to that as set out in Myers above i.e. only in the case of gross or reckless dereliction of his duty as alleged in this case in the Amended Points of Claim. This, he submits, reflects the modern approach. Thus for example the immunity of advocates has disappeared if that were relevant and there is absolutely no reason why an Expert should be treated differently to any other professional involved in the trial process if his conduct falls short of that kind of duty.
- He was constrained to concede that this duty and sanction does not derive from the wasted costs jurisdiction because that jurisdiction now enshrined in section 51 (6) only applies to "legal or other representative" as being a person exercising a right of audience or right to conduct litigation on his behalf (section 51(13) SCA 1981).
- Nevertheless, Mr Steinfeld submits that whilst he concedes that point it is possible to apply the same sanction against an Expert by the Court's powers under section 51 SCA 1981, which provides that the costs subject to the Act and the rules "shall be in the discretion of the Court".
COSTS DISCRETION UNDER SECTION 51(1)
- Before the decision of the House of Lords in Aiden Shipping Co Limited –v- Interbulk Limited  1 AC 965 it was generally thought that there was no power to order costs of an action against anyone other than a party. That decision reversed that misconception and showed for the first time that it was possible to make a costs order against a non-party in appropriate circumstances.
- The power and the circumstances under which it might be exercised were extensively considered by the Court of Appeal in the leading decision of Symphony Group Plc –v- Hodgson  QB 179.
- In that action it was sought to make an order for costs against a non-party, Halvanto. The judge at first instance determined that it was appropriate to do so, having also declined to remove himself from that issue on the grounds of apparent bias and proposed to direct a hearing be resumed on which the application should be considered. The Court of Appeal overturned that decision. In so doing they gave a number of reasons. First, they determined that it would be wrong in the circumstances of the case and the complexity of the issues to allow the summary procedure against Halvanto to be used when it would have been raised in an action against it, thus depriving Halvanto of the procedural protection it would have been entitled to if it had been a Defendant to an action. It was further not given any warning of a proposed application and therefore deprived of an opportunity to be joined, and the connection with the original proceedings was not close enough to justify the judge's findings of fact in the action as being admitted in that action and that therefore given the complexity of the issues it would be inappropriate for it to be dealt with summarily. They also concluded that the judge should not have heard the application because of matters he said in his judgment.
- It is necessary to examine this decision with some care, but as regards the general principle and at a later stage because Mr Fenwick QC submits (as in the Symphony case) (1) I should not hear the application and (2) the issues are so complex that it would be inappropriate for any other judge to hear the application so that there should be no enquiry even if in law it is capable of being made. This of course deprives the Administrators if one reaches that stage of any effective application. I will be very slow to allow such a result to occur once that stage was reached. It seems to me that that would be grossly unfair to the Administrators and would mean that the enquiry procedure would infringe their rights to a fair hearing under article 6. I do not see how it can be said fairly that the hearing can only be heard by one particular judge, but that judge cannot hear the matter so there should be no investigation. I appreciate that happened in the Symphony case, but the circumstances when that could arise must, in my judgment, be rare. It would be ordinarily quite wrong to deprive a party of a right of action because of a perceived inability to find a judge who would be capable of hearing it.
- The examples of the judgment that contained severe criticism are at page 187. I will not set them out, but it will be seen that the judge criticised the motive of the people and in so doing he went beyond criticism of their evidence.
- This led the Court of Appeal to conclude that it was inevitable that the judge could not hear the case because there would not be an appearance of justice being done. In effect this is an early statement of the principles that now apply when a judge should recuse himself if a fair-minded observer would give the opinion that a fair hearing could not be obtained contrary to article 6 see Re: Medicaments and Related Classes of Goods (No. 2)  1 WLRS 700.
- Although the Court of Appeal in Symphony decided that the judge by reason of his observations could not hear the subsequent hearings, they nevertheless made it clear that the fact that a trial judge in the course of his judgment expresses views on the conduct of a non-party constitutes neither bias nor the appearance of bias. "Bias is that antithesis of the proper exercise of a judicial function: see Bahai –v- Rashidian  1 WLR 1337, 1342H, 1346F". This is echoed in (for example) Locabail (UK) Limited –v- Bayfield Properties Limited  QB 451, where (inter alia) the Court of Appeal indicated that a judge should not recuse himself merely because he had criticised a party to the action. The Bahai case itself indicated that an application for a costs order should normally be determined by the trial judge; that a trial judge who criticised the conduct of parties and witnesses in a proper exercise of his judicial function could not be said to be biased.
- Mr Fenwick QC categorised my criticism of Dr Zamar as being "trenchant". To my mind that is a pejorative word designed to heighten the impact of the submission. It must be borne in mind that a court is under a duty when rejecting expert evidence to give reasons for so doing. Equally as Mr Steinfeld QC indicated in his submission when an expert is cross-examined as to his credit as an expert, that can involve necessarily an examination of his duties, his understanding of his duties and putting to him whether or not he has discharged those duties. Mr Fenwick QC did not again say that.
- Equally, it is impossible to contemplate making a costs order without forming a view on a prima facie basis that the person has a case to answer. Without forming such a view the application must be dismissed. That is not of course to say that the view that there is a case to answer inevitably leads to a conclusion that the judge has predetermined that the respondent to the application is in breach. In this particular case it must be borne in mind that the criticism of his evidence and his failings in his duties as an expert in the judgment have not involved an examination as to the alleged extent to which he has failed to provide expert evidence as required by CPR 35. That is an entirely different question and the Court will conduct an entirely different investigation. I do not see how the two can be said to be so conflated that it is impossible for me as the judge to criticise his evidence (and thus reject it) and thus remove myself from the case.
- To my mind that is the antithesis of the principles set out in the Bahai and the Symphony cases. The criticism of the evidence is the start of the process at stage two. To acknowledge Mr Fenwick QC's submission would mean that there would be no cases when a person is criticised that the judge could subsequently hear an application that that person pay the costs. In addition of course in this context there are as the courts have shown, in these cases considerable advantages from the point of view of costs in the court that heard the trial determining the costs issue. This case took 4 days of expert evidence. It will not in my judgment involve a re-examination of Mr Symes' capacity. That is sufficiently close to the enquiry in my judgment such that there is no basis for reinvestigation of that issue. What will be investigated in effect is a twofold enquiry.
- First, there will be an enquiry as to whether or not in preparing the reports Dr Zamar broke his duty. The second major enquiry will be over whether or not he ought to have responded positively to the material that was provided to him in March 2004 and third there will be an enquiry as to whether or not the evidence that he gave at trial is such that it was given in flagrant breach of his duties. This, as acknowledged by the Administrators, is higher than mere negligence.
- Setting out those enquiries show that there are entirely different requirements in the costs enquiry from that of the trial. It also shows that the predetermination, namely the rejection of Dr Zamar's evidence beyond setting the threshold for the application, does not involve any investigation as to what has to be established on the costs stage.
- Finally, in this context of course it is difficult to see how realistically the case could be considered expeditiously and proportionately by another judge. The case has spawned a vast amount of material, most of which I have one way or another considered. To require the Court to consider that may be said to be disproportionate.
- For my part, I decline to remove myself. I do not see that there is any basis made out in Mr Fenwick QC's submissions. Equally, I do not accept his submission that the summary investigation procedure at this stage would be oppressive and disproportionate. Significant costs have been incurred (in excess of £400,000.00 I understand). It would be quite wrong for the Administrators to be deprived of fair opportunity to seek to recover that, if that is their right. If, contrary to my view, it is concluded elsewhere that I ought not to participate I do not accept that, with a clearly defined series of issues, that the enquiry cannot be formulated before another judge, albeit with some difficulty. That will of course be a matter for the other tribunal (if that arises), but it would seem to me that the Court should be very reluctant to deprive the Administrators of any rights that they have without at least making an attempt to provide them with an alternative tribunal with defined issues. It would be a sad day for the administration of justice that the Administrators' claim should be denied them through no fault of theirs. Thus I reject Mr Fenwick QC's "Catch 22" submission.
- I conclude at this stage that if it is right that there should be an enquiry, there are no obstacles to that enquiry by reason of the nature of the enquiry nor the fact that the enquiry should be conducted by me.
PRINCIPLES OF COSTS ORDER AGAINST NON-PARTIES
- I revert to the Symphony case. At page 191 Balcombe LJ summarised the instances where non-party costs order have been made:-
"Since Aiden Shipping Co. Ltd. v. Interbulk Ltd.  A.C. 965 there has been a number of reported decisions where the court has been prepared to order a non-party to pay the costs of proceedings. These decisions may be conveniently summarised under the following heads.
(1) Where a person has some management of the action, e.g. a director of an insolvent company who causes the company improperly to prosecute or defend proceedings: see In re Land and Property Trust Co. Plc.  1 W.L.R. 601; In re Land and Property Trust Co. Plc. (No. 3)  B.C.L.C. 856; In re Land and Property Trust Co. Plc. (No. 2) The Times, 16 February 1993; Court of Appeal (Civil Division) Transcript No. 160 of 1993; Taylor v. Pace Developments Ltd.  B.C.C. 406; In re A Company (No. 004055 of 1991)  1 W.L.R. 1003 and Framework Exhibitions Ltd. v. Matchroom Boxing Ltd. (unreported), 23 September 1992; Court of Appeal (Civil Division) Transcript No. 873 of 1992. It is of interest to note that, while it was not suggested in any of these cases that it would never be a proper exercise of the jurisdiction to order the director to pay the costs, in none of them was it the ultimate result that the director was so ordered.
(2) Where a person has maintained or financed the action. This was undoubtedly considered to be a proper case for the exercise of the discretion by Macpherson of Cluny J. in Singh v. Observer Ltd.  2 All E.R. 751, where it was alleged that a non-party was maintaining the plaintiff's libel action. However, on appeal the evidence showed that the non-party had not been maintaining the action and the appeal was allowed without going into the legal issues raised by the judge's decision: see Singh v. Observer Ltd.  3 All E.R. 777n.
(3) In Gupta v. Comer  1 Q.B. 629 this court approached the power of the court to order a solicitor to pay costs under Ord. 62, r. 11 as an example of the exercise of the jurisdiction under section 51 of the Act of 1981.
(4) Where the person has caused the action. In Pritchard v. J. H. Cobden Ltd.  Fam. 22 the plaintiff had suffered brain damage through the defendant's negligence. That resulted in a personality change which precipitated a divorce. This court held that the defendant's agreement to pay the costs of the divorce proceedings could be justified as an application of the Aiden Shipping Co. Ltd. v. Interbulk Ltd.  A.C. 965 principle: see  Fam. 22, 51.
(5) Where the person is a party to a closely related action which has been heard at the same time but not consolidated - as was the case in Aiden Shipping itself.
(6) Group litigation where one or two actions are selected as test actions: see Joseph Owen Davies v. Eli Lilly & Co.  1 W.L.R. 1136.
I accept that these categories are neither rigid nor closed. They indicate the sorts of connection which have so far led the courts to entertain a claim for costs against a non-party."
- It will be seen that a costs order against a witness does not feature in the list.
- Later on (page 192) Balcombe LJ (after warning himself that there is only one immutable rule in relation to costs, namely that there are no immutable rules) gave generalised guidelines as follows:-
"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: see per Lord Goff in Aiden Shipping Co. Ltd. v. Interbulk Ltd.  A.C. 965, 980F. The judge should treat any application for such an order with considerable caution.
(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. Joinder as a party to the proceedings gives the person concerned all the protection conferred by the rules, as to e.g. the framing of the issues by pleadings; discovery of documents and the opportunity to pay into court or to make a Calderbank offer ( Calderbank v. Calderbank  Fam. 93); and the knowledge of what the issues are before giving evidence.
(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 under Ord. 15, r. 6(2)(b)(i) or (ii).
Principles (2) and (3) require no further justification on my part; they are an obvious application of the basic principles of natural justice.
(4) An application for payment of costs by a non-party should normally be determined by the trial judge: see Bahai v. Rashidian  1 W.L.R. 1337.
(5) The fact that the trial judge may in the course of his judgment in the action have expressed views on the conduct of the non-party constitutes neither bias nor the appearance of bias. Bias is the antithesis of the proper exercise of a judicial function: see Bahai v. Rashidian  1 W.L.R. 1337, 1342H, 1346F.
(6) The procedure for the determination of costs is a summary procedure, not necessarily subject to all the rules that would apply in an action. Thus, subject to any relevant statutory exceptions, judicial findings are inadmissible as evidence of the facts upon which they were based in proceedings between one of the parties to the original proceedings and a stranger: see Hollington v. F. Hewthorn & Co. Ltd.  K.B. 587; Cross on Evidence, 7th ed. (1990), pp. 100-101. Yet in the summary procedure for the determination of the liability of a solicitor to pay the costs of an action to which he was not a party, the judge's findings of fact may be admissible: see Brendon v. Spiro  1 K.B. 176, 192, cited with approval by this court in Bahai v. Rashidian  1 W.L.R. 1337 1343D, 1345H. This departure from basic principles can only be justified if the connection of the non-party with the original proceedings was so close that he will not suffer any injustice by allowing this exception to the general rule.
(7) Again, the normal rule is that witnesses in either civil or criminal proceedings enjoy immunity from any form of civil action in respect of evidence given during those proceedings. One reason for this immunity is so that witnesses may give their evidence fearlessly: see Palmer v. Durnford Ford  Q.B. 483, 487. In so far as the evidence of a witness in proceedings may lead to an application for the costs of those proceedings against him or his company, it introduces yet another exception to a valuable general principle.
(8) The fact that an employee, or even a director or the managing director, of a company gives evidence in an action does not normally mean that the company is taking part in that action, in so far as that is an allegation relied upon by the party who applies for an order for costs against a non-party company: see Gleeson v. J. Wippell & Co. Ltd.  1 W.L.R. 510, 513.
(9) The judge should be alert to the possibility that an application against a non-party is motivated by resentment of an inability to obtain an effective order for costs against a legally aided litigant. The courts are well aware of the financial difficulties faced by parties who are facing legally aided litigants at first instance, where the opportunity of a claim against the Legal Aid Board under section 18 of the Legal Aid Act 1988 is very limited. Nevertheless the Civil Legal Aid (General) Regulations 1989 (S.I. 1989 No. 339/89), and in particular regulations 67, 69, and 70, lay down conditions designed to ensure that there is no abuse of legal aid by a legally assisted person and these are designed to protect the other party to the litigation as well as the Legal Aid Fund. The court will be very reluctant to infer that solicitors to a legally aided party have failed to discharge their duties under the regulations - see Orchard v. South Eastern Electricity Board  Q.B. 565 - and in my judgment this principle extends to a reluctance to infer that any maintenance by a non-party has occurred".
- The parties in their submissions in particular have fastened upon item (7) and its later consideration at page 195:-
"(7) and (8) Again I can see no valid reason in the circumstances of the present case to justify the exceptions to these two principles which would be required if Mr. Bramley's evidence in the Hodgson action were to be allowed to justify the present claim against Halvanto".
- The parties before me have contended different meanings for the words.
- Mr Steinfeld QC submits that paragraph (7) says first that the normal rule (which he accepts) is that witnesses in either civil or criminal proceedings enjoy immunity from any form of civil action in respect of evidence given during those proceedings. One of the reasons is that put forward, namely the requirement that witnesses must be able to give their evidence fearlessly. Second he says the use of the word normal means that the rule is not an absolute rule and can be departed from. The present application (assuming all the other criteria are made out) is an instance where a departure was possible i.e. an order for costs against that witness the jurisdiction that the Court was precisely considering in Symphony. Third he submits that the final sentence is telling. If the evidence may lead to an application for costs, it introduces another exception to the general principle. He submits that if the Court was simply saying that a witness evidence was immune from suit, then item (7) would have ended at the first sentence. There is no further elaboration required in the context of an order that a witness pay costs.
- Mr Fenwick QC submits that Mr Steinfeld QC in effect takes the words out of context. The context was that Halvanto was the subject matter of an application as being a maintainer, a class of potential objects for an order for costs, which was not novel. Reading paragraph (7) in that context means that the Court of Appeal is merely saying that if an application is being sought against that type of person, that might be an exception to the normal rule that the evidence cannot be used against that person.
- He submits further that that is logical, bearing in mind the total dearth of authorities which have enabled an order to be made against a witness in respect of his evidence.
- This is not an easy question to answer. I have come to the conclusion that Mr Fenwick QC's submissions are not correct. I derive my conclusion for that from two points. First, an examination of the basis for the claim in Symphony shows that the claim is based both on the basis of his maintaining the action (at least until Legal Aid was granted) (thus a small role) and his attendance at the trial (encouraging the unreasonable stance) and an active part both in and out of the witness box (page 188). It follows therefore that the order contemplated an allegation against him, not merely the use of his evidence against him in respect of another allegation (as to which there is in reality no problem), but as a primary basis for seeking an order for costs against him. Thus the Claimants were seeking an order against him because in the circumstances of the case he had given evidence. They were not relying upon the evidence as a foundation for another case.
- That it is possible to use the evidence in another forum in restricted circumstances is established (see further my judgment below).
- The second reason I reject Mr Fenwick QC's submission is that if his analogy is correct the use of the word normal is not explicable. Nor are the remaining sentences of that paragraph. Finally, page 195, set out above is predicated by an assumption that the evidence is going to justify the claim. I read that as being a primary basis, not evidence proving their claim under the head (for example) of maintainer.
- I conclude therefore that there is a clear statement in Symphony that in appropriate circumstances a third party costs order can be brought against somebody who was a witness and as a result of the manner in which he gave evidence as a witness. This was in the context of the Court acknowledging that normally a witness was immune from suit.
- There is a further objection to drawing an inference as to the meaning of Symphony as set out above. Mr Fenwick QC submitted that such an inference would be contrary to a whole series of authorities (including one in the Privy Council and one in the House of Lords), which affirmed the principle that a witness is absolutely immune from suit. I will refer to these authorities further in this judgment below, but first I need to deal with the question as to whether or not the proceedings are flawed, because no warning was given to Dr Zamar that his evidence might found the basis for the present claim.
NEED FOR WARNING
- The Symphony case emphasised the need for warning; see items (2) and (3) at page 193 summarised above. It also emphasised that the judge should be alert to the possibility of an application against a non-party was motivated by a resentment and an inability to obtain an effective order (item (9) page 194). In the present case, it is quite clear that the Administrators were alive to the possibility that if the case went a certain way they might be in a position to maintain an action of the present type against Dr Zamar. See for example their skeleton argument for the hearing of 3rd March 2004. I do not see a difficulty about that. It would be very surprising if experienced lawyers in this case advising the Administrators did not alert them to the two difficulties they were facing. First, in order to progress the enquiries and the outstanding application it was necessary for Mr Symes' capacity to be determined. Second, it would necessarily be an expensive exercise where it would be most unlikely that they would make an effective recovery against Mr Symes. That was equally the case when a party sued an impecunious person who had Legal Aid. There was no power to compensate such a person in the event that the judgment appeared to be of a Pyrrhic nature as regards costs recovery (at least as regards first instance). Given that inevitability, the idea that the Administrators' advisers did not consider making this application is to my mind unreal.
- However, that does not mean that they cannot seek to cross-examine Dr Zamar and obtain as a result of that material which has relevance at the costs application stage. It would be wrong to allow them to cross-examine on matters which were irrelevant to the primary trial, but I see absolutely nothing wrong in the Administrators cross-examining Dr Zamar, for example, quite legitimately as to his understanding of his duty and whether he has complied, for the purposes of destroying his evidence on the determination of the Issue even if that has a consequence (which they know) that might provide material to assist them in a subsequent costs application against him.
- It is clear that warnings have to be given. To fail to warn someone that their evidence might lead to a costs application against them is a denial of justice. However, to say that in generalised terms ignores the specifics. The Court of Appeal in the Symphony case were clearly live to the need to balance the duty to give a warning and the oppressive and potentially menacing nature that a warning of such an application being made would be improper. Thus at paragraph (9) at page 194, Balcombe LJ referred to the case of Orchard –v- South Eastern Electricity Board  QB 565. That case criticised a practice, which had arisen as a result of an earlier Court of Appeal decision Kelly –v- LTE  1 WLR 1055. The possibility of a privately paying Defendant being sued by a Claimant with Legal Aid where the lawyers representing the Claimant could be subject to a costs order led to a practice of sending letters warning the Claimant's solicitors that if they persisted in their action and it was lost the Defendants would seek a costs order against them personally (bearing in mind the restricted ability of the Court to order privately paying Defendants to be compensated out of the Legal Aid Fund). In Orchard the Court of Appeal indicated that such letters were possibly a contempt of court (page 581).
- In my judgment, the sensible way forward was that provided by Aldous J in Filmlab Systems International Limited –v- Pennington  1 WLR 673, namely that the consideration should take place afterwards "although on rare occasions it might be desirable to inform the legal representative that such an order might be sought".
- The result of those authorities appears to present a conundrum. Symphony says a warning should be given, whereas Orchard suggests that it is unfair pressure. The secondary question arises that if a warning has to be given, when should the warning be given and what form should it take.
- In my judgment these difficulties are illusory rather than real. It seems to me that whether or not a person should be warned and how a person should be warned is to be approached on a case by case basis. At one end, as shown by Orchard and Filmlab, there is really no reason to warn a legal representative of the potential exposure that a person has to a wasted costs order in the event that they are found guilty of misconduct justifying such an order. They should know that from their own expertise and if they do not that is probably an indictment of their intellectual abilities anyway. At the other end of the spectrum is a lay witness who is giving evidence and is being cross-examined and might well be being trapped into giving answers, for example, that might expose him to a claim, or even lead for example to him being prosecuted for perjury. It seems to me that a judge considering that should be alert to ensure that any cross-examination is fair, is not used as a stalking horse for a subsequent costs application, and that a witness is given an opportunity to consider his position, reconsider his evidence and if necessary withdraw it.
- In between are Experts. I am of the view (echoing Mr Steinfeld QC's submission) that the only warning required to be given to an Expert is the self evident one set out in the CPR and the declaration that he signs. That declaration brings it home graphically to the Expert, because he is warned, in effect, that he could be the subject matter of contempt proceedings. Bearing in mind the severity of those sanctions one would expect an Expert to be alive to potentially adverse consequences in the event that he breaches his duty to the Court.
- I do not therefore see, in the context of an Expert, that any further warning is required to be given to him, other than that one spelled out in the CPR. Indeed, if any letter was sent, that in my judgment would be plainly improper and a potential contempt, as set out in the Orchard case.
- Another example is shown in the Symphony case. If the person against whom a costs order is contemplated could have been a party to the action, then that person ought to be warned, so that that person can apply to be joined to be a party fully to ventilate the case. A good example of that is (for example) where there is a claim arising out of a conveyancing transaction. It might be that litigation has arisen arguably because of the negligence of one or other of the firms' solicitors retained by the parties to litigation. It would be quite wrong to draw that solicitor into the litigation as a witness with a view to making a subsequent claim against him based on his evidence at a later stage. He should be warned, before he is giving evidence, that in the event that his evidence goes a particular way, it would be used against him to seek costs. That would then give him an opportunity to apply to be joined (under CPR 19 or 20) to determine as an issue in those proceedings his responsibility for the difficulties that have led to the dispute.
- All of these instances to my mind merely show that whether or not to give a warning is not an absolute requirement, but one to be considered on a case by case basis. For Dr Zamar to have received a "warning shot" would in my judgment have been improper; he is sufficiently warned by reason of his need to understand his duty and the declaration that he has signed.
- Until recent times there were two immunities in respect of trials. The first immunity was that of a witness. The second immunity was that of the advocates.
- The advocates' immunity appears to have flowed from the witness immunity.
- Those immunities have now diverged. In the case of advocates there no longer is any immunity from suit arising out of things done and said in Court; see Arthur J S Hall & Co. –v- Simons  1 AC 615 H.L. That case overruled the long held belief that solicitors and advocates were immune from suit in respect of things that were done in Court or done in close proximity to the Court. That overturned a long line of authorities to the contrary. Thus, for example, only two years earlier the House of Lords had refused permission to appeal in an action brought based on a settlement affected at the door of the Court which was said to be immune; see Kelly –v- Corston  QB 686.
- I have already observed that the Ridehalgh case removed any suggestion that the Court's power to order officers of the Court to pay for wasted costs was connected with the immunity. In Arthur J S Hall the court in passing referred to the "witness analogy". Thus Lord Hoffman said (page 687):-
"5. The witness analogy
No one can be sued in defamation for anything said in court. The rule confers an absolute immunity which protects witnesses, lawyers and the judge. The administration of justice requires that participants in court proceedings should be able to speak freely without being inhibited by the fear of being sued, even unsuccessfully, for what they say. The immunity has also been extended to statements made out of court in the course of preparing evidence to be given in court. So it is said that a similar immunity against proceedings for negligence is necessary to enable advocates to conduct the litigation properly".
- He reverted to this principle at page 697, as follows:-
"18. The witness analogy"
This argument starts from the well-established rule that a witness is absolutely immune from liability for anything which he says in court. So is the judge, counsel and the parties. They cannot be sued for libel, malicious falsehood or conspiring to give false evidence: Marrinan v Vibart  1 QB 528. The policy of this rule is to encourage persons who take part in court proceedings to express themselves freely. The interests of justice require that they should not feel inhibited by the thought that they might be sued for something they say. And, as Fry LJ explained in the passage which I have already cited from Munster v Lamb 11 QBD 588, 607 this policy is regarded as so important that it requires not merely qualified privilege but absolute immunity.
The application of the analogy to the negligence of lawyers involves generalising the policy of the witness immunity and expressing it, as Lord Diplock did in Saif Ali v Sydney Mitchell & Co  AC 198, 222A, as a "general immunity from civil liability which attaches to all persons in respect of their participation in proceedings before a court of justice". Stated at this level of generality, it includes immunity for advocates from liability for anything that they may do. The rationale is said to be to "ensure that trials are conducted without avoidable stress and tensions of alarm and fear in those who have a part to play in them".
My Lords, with all respect to Lord Diplock, it seems to me that to generalise the witness immunity in this way is illegitimate and dangerous. In the High Court of Australia in Mann v O'Neill (1997) 191 CLR 204, 221, 912 McHugh J spoke of the perils of extending the witness immunity by analogy. There is, he said, a temptation:
"to recognise the availability of the defence for new factual circumstances simply because they are closely analogous to an existing category (or cases within an existing category) without examining the case for recognition in light of the underlying rationale for the defence."
What is the rationale of the witness immunity? In Taylor v Director of the Serious Fraud Office  2 AC 177, 215C, I said that the policy of the immunity was "to encourage freedom of expression" and that was why it was limited to cases in which "the alleged statement constitutes the cause of action". My noble and learned friend, Lord Hope of Craighead, explained, at p 219H, that the immunity did not, for example, protect a witness against an action for malicious prosecution based on what he had said to the police because "it is the malicious abuse of process, not the making of the statement, which provides the cause of action". In other words, the immunity is based upon a perception that witnesses would otherwise be less inclined to come forward and tell the truth. They would behave differently in a way which was inimical to the interests of justice.
It is not sufficient, therefore, to explain any immunity relating to court proceedings by saying that the people involved should be free from "avoidable stress and tensions". That merely suggests that everyone would find litigation more agreeable if no awkward consequences could follow from anything which the participants did. It is another version of the vexation argument, which I have already rejected. It is necessary to go further and explain why the public interest requires that a particular participant should be free from the stress created by the possibility that he might be sued. How would he otherwise behave differently in a way which was contrary to the public interest?
If one asks the question in this way, as I think one must, then it becomes apparent that Lord Diplock was inconsistent in rejecting the divided loyalty argument and the cab rank argument but accepting the witness analogy. It involves, as Lord Diplock himself would have put it, a petitio principii. The witness rule depends upon the proposition that without it, witnesses would be more reluctant to assist the court. To establish the analogy, it is necessary to point to some similar effect on the behaviour of lawyers. But Lord Diplock rejected the only two candidates put forward for likely changes in behaviour and offered no others. The proposition that absence of immunity would have an effect contrary to the public interest was assumed without argument.
Mr Scott invited your Lordships to apply by analogy the decision of the Court of Appeal in Stanton v Callaghan  QB 75, in which it was held that an expert witness could not be sued for agreeing to a joint experts' statement in terms which the client thought detrimental to his interests. He said that this was an example of a general immunity for acts done in the course of litigation. But that seems to me to fall squarely within the traditional witness immunity. The alleged cause of action was a statement of the evidence which the witness proposed to give to the court. A witness owes no duty of care to anyone in respect of the evidence he gives to the court. His only duty is to tell the truth. There seems to me no analogy with the position of a lawyer who owes a duty of care to his client.
Nor is there in my opinion any analogy with the position of the judge. The judge owes no duty of care to either of the parties. He has only a public duty to administer justice in accordance with his oath. The fact that the advocate is the only person involved in the trial process who is liable to be sued for negligence is because he is the only person who has undertaken a duty of care to his client".
- In passing he also made reference to wasted costs orders and at page 693 he said this:-
"14. Wasted costs orders
The judgment of the Court of Appeal in Ridehalgh v Horsefield  Ch 205, 226-231 contains a history of the wasted costs jurisdiction. Briefly stated, the court had jurisdiction before 1990 to order solicitors to pay costs wasted by their clients or other parties by reason of their misconduct, default or serious negligence. The jurisdiction did not apply to barristers. But section 4 of the Courts and Legal Services Act 1990 conferred power to make rules under which the court could order any legal representative to pay costs wasted by any party as a result of "any improper, unreasonable or negligent act or omission" on their part. Rules to this effect came into force on 1 October 1991: RSC Ord 62, r 11. Sections 111 and 112 of the Act conferred similar powers on judges and magistrates in criminal proceedings.
For present purposes, the significance of this development is that it made advocates, both barristers and solicitors, liable for negligence in the conduct of litigation. It is true that it was a limited form of liability because it was restricted to the payment of wasted costs. It did not extend to any other loss which their negligence might have caused to their clients or other parties. But the costs of modern litigation can amount to a good deal of money. Furthermore, the possibility that the negligent conduct of litigation may lead to a wasted costs order being visited upon the advocate by summary process, before the very judge hearing the case, is likely to be more present to the mind of an advocate than the prospect of an action for negligence at some time in the future. If, therefore, the possibility of being held liable in negligence is calculated to have an adverse effect on the behaviour of advocates in court, one might expect this to have followed, at least in some degree, from the introduction of wasted costs orders.
Such was certainly the submission of counsel for both the Law Society and the Bar Council to the Court of Appeal in Ridehalgh v Horsefield  Ch 205. The Courts and Legal Services Act 1990 had extended rights of audience in the superior courts to solicitors and section 62 recognised that they should in that capacity have whatever immunities were enjoyed by barristers:
"(1) A person--(a) who is not a barrister; but (b) who lawfully provides any legal services in relation to any proceedings, shall have the same immunity from liability for negligence in respect of his acts or omissions as he would if he were a barrister lawfully providing those services."
The two professional bodies argued that any liability for wasted costs orders should be subject to the immunity recognised in section 62. Their counsel were not however agreed on how the divided loyalty of the advocate would be affected. Mr Matheson QC for the Law Society said, at p 213E, that it would "affect the willingness of legal representatives fearlessly to represent their clients' interests". Mr Rupert Jackson QC, for the Bar Council, advanced, at pp 217-218, the Rondel v Worsley  1 AC 191 argument that it would affect the ability of the barrister "to be able to perform his duty to the court fearlessly and independently". Either version of the argument would have made a sizeable hole in the new jurisdiction, particularly in its application to barristers in criminal proceedings. The Court of Appeal rejected it. Since then, many wasted costs orders have been made as a result of the negligent conduct of legal proceedings.
My Lords, I accept that the liability of a negligent advocate to a wasted costs order is not the same as a liability to pay general damages. But the experience of the wasted costs jurisdiction is the only empirical evidence we have available in this country to test the proposition that such liability will have an adverse effect upon the way advocates perform their duty to the court. There is no doubt that the jurisdiction has given rise to problems, particularly in exercising it with both fairness and economy. But I have found no suggestion that it has changed standards of advocacy for the worse. On the contrary. In Fletamentos Maritimos SA v Effjohn International BV (unreported) 10 December 1997; Court of Appeal (Civil Division) Transcript No 2115 of 1997, the Court of Appeal made a wasted costs order against a firm of solicitors who had instructed counsel to made a hopeless application for leave to appeal. Simon Brown LJ ended his judgment by saying:
"Nothing in this judgment should, or I believe will, deflect legal representatives, on instructions, from vigorously pursuing and arguing the most difficult cases. An argument, however unpromising, is perfectly properly advanced (not least on an application for leave to appeal) provided only and always that it is respectable and is not being pursued for reasons other than a genuine belief in the possibility of its success. If our order today were to discourage some of the more absurd arguments with which this court is sometimes plagued, I for one would not be regretful."".
- Significantly, the observations of Simon Brown LJ referred to at the end of that extract echo what the Court of Appeal said in Stanton –v- Callaghan  1 QB 75, a similar view expressed as to experts adopting the view expressed by Mr Aldous QC (as he then was) in Palmer –v- Durnford Ford  QB 483 (see Stanton page 91 and Palmer page 488D).
- Thus the House of Lords, in Arthur J S Hall and thus the Court of Appeal in Stanton (which itself was approved in Arthur J S Hall, but not on this point) clearly believed that the possibility of a lawyer and an expert respectively being ordered to pay costs would not in their view operate as a deterrent to such person giving evidence.
- I agree with that analysis. One has to remember the standard required to found the liability. It must be gross dereliction of duty or recklessness. Mr Fenwick QC submitted that the rational of the rule is not to protect the guilty, but to provide a general principle for protection of witnesses from intimidation and threats. That indeed is one of the several bases for the need to confer a prima facie immunity on a witness; see Otton LJ in Stanton at page 106. Interestingly (although this might not be significant) the reasons he gives are as follows:-
i) The need to stop matters being litigated,
ii) The need to protect witnesses themselves from suits, and
iii) The need to encourage witnesses to come forward and say what they have to in Court.
- However, significantly Otton LJ went on to say this:-
"I pause here to note that immunity is not granted primarily for the benefit of the individuals who seek it. They themselves are beneficiaries of the overarching public interest, which can be expressed as the need to ensure that the administration of justice is not impeded. This is the consideration which should be paramount. And it is not only the conduct of the immediate hearing which we should consider to be the "administration of justice." This is not a narrowly-drawn phrase: it is best served by a purposive construction. In this I agree with Lord Wilberforce who said in Roy v. Prior  A.C. 470, 480: "Immunities conferred by the law in respect of legal proceedings need always to be checked against a broad view of the public interest." (Emphasis added.)"
Each party who comes, or is about to come, before a court is participating in an event which supervenes individual concerns and interests. When we are concerned with the proper and smooth administration of justice through our legal system we should not seek to place burdens on those who participate in it at any stage. Thus I do not think it necessary to make distinctions between the various reasons which have been given to justify the granting of immunity and approach this situation in an algorithmic fashion and say that some reasons should apply to some cases but not to others; the case is best approached by asking the simple question: would it serve the interests of the administration of justice to grant immunity? To answer this question we need to examine the role and place of an expert in the legal system".
- He returned to this theme at page 108 as follows:-
"Against the analysis I consider the particular circumstances of this case. On any basis the defendant when attending the meeting with his opposite number enjoyed the immunity. It is true that he did not do so pursuant to R.S.C., Ord. 38, r. 38 but the purpose of the meeting was to identify those parts of the evidence and the other's opinion which they could agree and those which they could not. It was in the public interest to do so. The duty to the court must override the fear of suit arising out of a departure from a previously held position. The expert must be able to resile fearlessly and with dignity. In the instant case both experts resiled from more extreme positions. In theory, at least, the defendants could have sued their expert for placing them in a more adverse position. It must follow that there was no duty to inform the lay clients or the solicitors or to seek instructions before recording the concession in the joint statement".
- Both Mr Steinfeld QC and Mr Fenwick QC submitted that particular extract from Otton LJ's judgment supported their submissions. I can see why they might submit that. There is a need for witnesses to be able to give their evidence freely. It is a right, which is paramount, but not absolute (although it is often said to be so). If witnesses tell lies, they can be prosecuted for perjury. In that eventuality their evidence will be used against them. If by their evidence (for example they tell lies in an affidavit in compliance with a Freezing Order requirement) they can also said to be in contempt of Court. In that eventuality their evidence can be used against them. If they sign a false statement of truth to a witness statement they can in addition be prosecuted for contempt of Court in that regard. An Expert who signs a false declaration to his report equally is open to contempt proceedings. What is prohibited, however, is litigation seeking damages or any other remedy arising out of the evidence itself. That too, however, is not absolute immunity. Thus in the case of Darker –v- Chief Constable of West Midlands Police  1 QC 435 the House of Lords upheld an action based on a conspiracy to fabricate false evidence. That was not held to be protected by the immunity of witnesses.
- It is unfortunate to my mind that the Arthur J. S. Hall case was heard by the House of Lords in March 2000 and the Darker case was heard in May 2000. In the former case the Judgment was delivered on July 20th and the later on July 27th, yet neither is referred to in the other despite the overlap and despite the fact there was an overlap of some of the judges.
- Mr Fenwick QC submits that the due administration of justice will be adversely affected if a Damoclean threat of a costs order hangs over a witness. That he submits is the policy as enshrined in the Stanton case and reaffirmed in the House of Lords, which leads to the conclusion that save in limited circumstances a witness should be immune from suit from the evidence that he has given.
- Mr Steinfeld QC submits that the administration of justice would be brought into disrepute if an appropriate sanction could not be obtained against an expert who acted in gross dereliction of his duty to the Court. The sanctions he submits suggested by Mr Fenwick QC (committal, reporting to professional bodies and the like) are illusions. The real and appropriate sanction is the compensatory principle enunciated in Myers applied to experts. No one, he submits, can believe that the duty of experts to give evidence fearlessly will be affected by a threat of a costs application in the event that they act in effect in flagrant disregard of their duties (echoing the cases I have referred to above).
- In the Locabail case, Mr Lawrence Collins QC did make a costs order against a witness (inter alia) arising out of his giving evidence. There were other factors (just as in the Symphony case), which led him to make the order. He too was a maintainer for example. No argument was raised dealing with the question of immunity. It follows that while it is a good illustration of the application of the general principle, it does not assist me in resolving the immunity issue raised fairly and squarely for the first time in this case.
- Mr Fenwick QC submits that given the dearth of authority, given the judgments in Arthur J S Hall and Darker (echoing Stanton) if there was any possibility of an expert witness (or even a non-expert witness) being exposed to a liability for costs one would have expected something to have been said. Nothing is said in any of those judgments, which indicates that a witness can be the subject matter of an order for costs.
- Equally, however, there is nothing in those cases that says it cannot. There is no authority (beyond Symphony, as set out above) which addresses this as a possibility.
- It seems to me that I should approach the matter along the principles (for example) set out in the Stanton case. Do expert witnesses need immunity from a costs application against them as a furtherance of the administration of justice? Alternatively, is it against the administration of justice principles not to allow a costs application of the type envisaged by the Administrators to be brought against Dr Zamar?
- In my judgment, that question should be looked at in the light of modern developments of the law in relation to litigation. Thus, wasted costs applications against advocates have been decoupled from the immunity. The immunity has been destroyed as regards advocates. In neither of those cases did the Courts accept submissions that the immunity inhibited advocates fearlessly representing their clients. Indeed they rejected them. As regards experts in Stanton the Court of Appeal equally was dismissive of the belief that Experts would be deterred from giving proper reports because of a potential action against them.
- It seems to me that in the administration of justice, especially, in spite of the clearly defined duties now enshrined in CPR 35 and PD 35, it would be quite wrong of the Court to remove from itself the power to make a costs order in appropriate against an Expert who, by his evidence, causes significant expense to be incurred, and does so in flagrant reckless disregard of his duties to the Court.
- I do not regard the other available sanctions as being either effective or anything other than blunt instruments. The proper sanction is the ability to compensate a person who has suffered loss by reason of that evidence. This flows from the Myers case applied to Experts. I do not accept that Experts will, by reason of this potential exposure, be inhibited from fulfilling their duties. That is a crie de cour often made by professionals, but I cannot believe that an expert would be deterred, because a costs order might be made against him in the event that his evidence is given recklessly in flagrant disregard for his duties. The high level of proof required to establish the breach cannot be ignored. The floodgates argument failed as regards lawyers and is often the court of last resort.
- Equally, there is no reason why an expert who, for example, has difficulties, cannot seek directions from the Court under CPR 35.14 as to his evidence and in any such enquiry in the way which I have set out above, the Court will be alert to ensure that the Expert is given a full opportunity to present his case.
- I appreciate that in so concluding this is the first occasion the Court has been asked to consider this. I do not think that the authorities cited by Mr Fenwick QC bind me to come to a different conclusion. I do not accept the question of the separate jurisdiction of the Court to ensure duties owed to it are complied with was within the contemplation of the Courts when they were discussing witness immunity. The idea that the witness should be immune from the most significant sanction that the Court could apply for that witness breaching his duties owed to the Court seems to me to be an affront to the sense of justice.
- For all of those reasons I do not think it is appropriate to set aside the order I made nor to dismiss the application. In my judgment, Dr Zamar has a case to answer. I stress however again, (as I stressed repeatedly in the hearing) I have made no decision against Dr Zamar as to whether or not he has been guilty of a breach of this duty. Nor have I determined any extent of any such breach, nor whether any financial consequences should be imposed upon him as a result.
- I will hear submissions as to the directions that are necessary to determine the enquiry. As I observed in argument, it may be that some of the issues should be struck out and the Administrators be restricted in their allegations, but once again I will hear submissions on those after delivery of the judgment.
- I am grateful to all those involved in the presentation of the case (both Counsel and Solicitors), I have been greatly assisted in the way in which the cases have been put together and the arguments, both written and oral, deployed.
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