Poor expert evidence leads to application for wasted costs (High Court)

The defendants applied for a wasted costs order against the claimant's solicitors (S). They based the application on findings at trial, that the evidence of the claimant's expert, Mr Jones, was inappropriate and tendentious. Moreover, Mr Jones did not appear to understand his duty to the court (see, Mengiste and another v Endowment Fund for The Rehabilitation of Tigray and others [2013] EWHC 598 (Ch) and Mengiste and another v Endowment Fund for The Rehabilitation of Tigray and others [2013] EWHC 599 (Ch)).

The defendants alleged that given that the claimant's case stood or fell on Mr Jones' evidence, S should have either not relied on such evidence, or stopped acting in the proceedings when they saw his poor report and performance at trial. Because of S's failings, the entirety of the costs of the action were incurred dealing with inadequate expert evidence.

After referring to the principles and procedure for wasted costs applications established in Ridehalgh v Horsefield [1994] Ch 205 and Persaud and another v Persaud and others [2003] EWCA Civ 394, section 51 of the Senior Courts Act 1981 and CPR 48.7, the court held that the defendants had established a strong initial case for a wasted costs order. S is expected to reply to the defendant's complaints on the merits at stage two of the application.

This was a relatively straight forward application for the court because it did not need to consider any privilege issues. The allegations did not relate to the "gestation" of the report but to S' reliance on it. The court commented, however, that if any issues of privilege were to arise at stage two, the inability of S to reveal matters of privilege must weigh heavily in their favour.

Although the decision applies existing principles, it is a reminder of the possible consequences of pursuing claims on the basis of weak or speculative evidence.

Case: Mengiste and another v Endowment Fund for the Rehabilitation of Tigray and others [2013] EWHC 1087 (Ch) (1 May 2013).