Phillips v Symes (Expert Witnesses: Costs)
|England & Wales
|Mr Justice Peter Smith
|20 October 2004
| EWHC 2330 (Ch)
|Case No: HC0100810
|20 October 2004
 EWHC 2330 (Ch)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Peter Smith
Case No: HC0100810
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
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment arises out of the hearing that took place on Tuesday 12 th 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 30 th 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 25 th March 2004 ("the Issues").
As a result of my judgment on 30 th 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 (Ch) and the earlier Court of Appeal judgment 13th October 2003 , 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 8 th 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 12 th September 2003 he was instructed by Bracher Rawlins to examine Mr Symes and that he examined him on 16 th and 27 th October 2003 and produced a letter report and subsequent reports dated 23 rd October 2003 and a signed written report dated 26 th October 2003 (signed 28 th 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...
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