Costs against expert witnesses in Private Law (Children) proceedings

The recent case of Re: ABCDEF (Fact Finding: Honour Based Violence) 2019 EWHC 406 dealt with the subsidiary issue of when a costs order can be made against an expert witness.

The relevant facts are these. An application for a Child Arrangements Order, by the father for the relevant child to ‘spend time ‘ with him was made after the mother had fled the family home, moving to live with a friend initially, and then to a refuge, after contacting the police making allegations of domestic abuse.

The proceedings were originally heard at the Family Court in Derby before it was transferred to the High Court. On the 8th of December 2017, the court gave permission for an expert on honour based violence, to be instructed. Her report was due to be filed on the 5th of February 2018, with a fact finding hearing listed on the 16th of April 2018. That date was vacated and relisted on the 23rd and 24th of July 2018, with the expert requesting an extension for her report to be filed by the 30th of March 2018. Following that there was a further extension for her report to be filed on the 21st of May 2018. The report was duly filed on that date `and responses to questions subsequently, were filed on the 2nd of July 2018.

The expert then gave evidence on the 23rd of July 2018. Following that hearing, the proceedings were then case managed for a composite hearing dealing with both fact finding and welfare issues on the 4th of December 2018. Among the orders made, was a direction for the expert to file an addendum report by the 28th of September 2018.

On the 28th of August 2018, the court heard an application from the expert, for an extension of time for her to file the addendum report. That application was refused and the expert was ordered to file her report as ordered or attend before the court to explain herself on the 2nd of October 2018.

On the 2nd of October 2018, the expert attended and explained, that because of professional commitments and bouts of ill health, she had been unable to file her report on the date as ordered. As a result of that explanation an extension for the filing of the addendum report was granted to the 15th of October 2018. Of note, the sole purpose of the hearing on the 2nd of October 2018, was for the expert to explain why she was not able to comply with the direction to file the addendum report by the 28th of August 2018; as a result all of the parties incurred costs in attending that hearing. The expert also conceded that there was no reason why she should not pay the costs for that hearing.

There then followed a further hearing on the 10th of October 2018, because the expert notified the guardian on the 4th of October 2018, that she would not be able to file her report by the 15th of October 2018, because yet again she had taken ill. At that hearing the provision for the expert to file an addendum report was discharged.

At the commencement of the composite hearing on the 4th of December 2018, the expert who was due to give evidence failed to attend, citing illness as the reason. Costs schedules were sent to her by each party and she was given permission to file written submissions.

On the 6th of December 2018 the court received the expert’s written submissions. Her position had changed from that on the 2nd of October 2018, when she conceded that she was liable to pay the costs of that hearing. Her position now was that she should not be liable for costs nor should she be named in the judgment.

The position of the court was clear. The expert had serially failed to comply with the orders of the court, both in regard to the first report and the addendum report and as a result she was liable for the costs incurred on the 2nd of October 2018 and on the 10th of October 2018, as both hearings were required because of her failure to comply with the court orders.

In coming to its decision the court had regard to:

  1. Section 51(1) of Senior Courts Act 1981 which sets out that the “… costs of and incidental to all proceedings… in the family court…shall be in the discretion of the court,” and
  2. Section 51(3) which gives the court the “power to determine by whom and to what extent costs are to be paid.”

The court also had regard to Rule 28.1 of the Family Procedure Rules and the relevant case law. The Privy Council decision of Dymocks Franchise Syatems (NSW) Pty Ltd v Todd and Others (No2) (NewZealand) 2004 was also referred to, reiterating the point that while costs orders are to be seen as ‘exceptional’, exceptional merely means no more than the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense.

There was some sympathy for the fact that the expert had ongoing difficulties with her health, but overall the court felt that since her condition was such that she could not be sure that she would be able to comply with the orders of the court, she should not have accepted instructions to be a forensic expert witness.

This case puts experts on notice that the court will not be reluctant to make costs orders against them in private law proceedings, especially where the ethos is for these cases to be resolved as soon as possible. Professional commitments and health reasons will not be an excuse, if it is shown that the expert was taking a chance in accepting instructions in the first place. In this case there were a number of extensions sought in respect of the filing of both reports and in respect of the addendum report, the court lost patience with the expert completely and discharged the requirement for it to be filed.