A three-judge panel of the Ontario Court of Appeal ordered Dr. Charles Smith yesterday to pay Louise Reynolds' legal costs "forthwith," calling her an impoverished litigant who struggled for her day in court.

Allowing people like Reynolds to recoup their legal costs part-way through "protracted litigation" is important because it improves access to justice, the judges said in their decision.

In civil cases, the losing party normally pays the winner's legal expenses. But Smith argued he shouldn't have to pay Reynolds' costs until after her case gets to trial because he might ultimately be found immune from liability.

The court said there was no reason Reynolds, 37, who spent nearly two years in prison after being charged in 1997 with murdering her daughter, Sharon, should not be paid her "hard-won" legal costs "now."

"Ms Reynolds has struggled for five years to win the right to proceed to trial. Dr. Smith has vigorously opposed her right to trial at every step of the way," the court said. "She was forced to come to this court simply to have her right to trial confirmed."

A committee of forensic experts recently found mistakes in 20 other autopsies performed by Smith. A public inquiry, headed by Justice Stephen Goudge of the Court of Appeal, is now looking into systemic practices in pediatric forensic pathology in Ontario between 1981 and 2001.

After battling Smith through two court levels, Reynolds won the right to proceed with her lawsuit in March and her legal bills of $44,000 are "stand alone" costs associated with that litigation and the important public issues it raised, the court said yesterday.

The upcoming trial raises the different issue of Smith's liability, the panel said.

For the past five years, Reynolds' lawyer, Peter Wardle, has been representing her pro bono. Taking cases on this basis often involves financial sacrifices – sacrifices more lawyers might be willing to make if they stand a chance of getting paid along the way, the court said.

Reynolds was charged with second-degree murder after Smith performed an autopsy and concluded an instrument such as a knife or scissors was the source of more than 80 stab wounds on her daughter's body.

The charge was withdrawn in 2001, after a second autopsy found some of the injuries were caused by dog bites. A pit bull had been confined in the basement where the girl's body was found.

Smith argued that a long-standing rule giving witnesses immunity from prosecution shielded him from civil liability at all stages of his involvement in the case, including the autopsy.