Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Harrington -v- Cork City Council and Cork County Council [2015] IEHC 41 (30 January 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H41.html
Cite as: [2015] IEHC 41
[New search] [Help]
Judgment
___________________________________________________________________________ | ||||||||||||||||||
Neutral Citation: [2015] IEHC 41 THE HIGH COURT [2011 No. 7566 P] BETWEEN:- PAUL HARRINGTON PLAINTIFF AND
CORK CITY COUNCIL AND CORK COUNTY COUNCIL DEFENDANT JUDGMENT of Kearns P. delivered on the 30th day of January, 2015 1. The present proceedings were initiated by a personal injuries summons dated the 17th August, 2011, wherein the plaintiff claims damages for alleged personal injuries sustained while removing an injured person from a motor vehicle at the scene of an accident on or about the 30th October, 2010. 2. This is a matter which came before the Court by way of notice of motion dated the 8th September, 2014, seeking the Court’s direction in respect of the plaintiff’s obligation to disclose the reports of experts intended to be called to give evidence in relation to issues in the within proceedings pursuant to Order 39, rule 46 of the Rules of the Superior Courts 1986, as amended. 3. The application is grounded on the affidavit of Mr. John Buckley, solicitor for the first named defendant, sworn on the 24th June, 2014. Mr. Buckley deposed that by letter dated the 1st March, 2012, solicitors for the plaintiff, Ernest J. Cantillion, delivered to Ronan Daly Jermyn, solicitors for the first named defendant, a disclosure schedule of expert witness reports from witnesses intended to be called at hearing pursuant to his obligations under Order 39, rule 46. 4. The first defendant delivered its disclosure schedule pursuant to the said statutory obligations by letter dated the 20th September, 2013, listing the witnesses intended to be called. No expert witnesses or reports were disclosed, however, the first defendant reserved the right to call any expert evidence or produce expert reports pursuant to the proceedings ‘as matters may arise’. 5. The first defendant thereafter requested the plaintiff to furnish it with copies of the reports referred to in its disclosure schedule. The plaintiff has, however, refused to do so absent an undertaking from the first defendant that it will not divulge the contents of the plaintiff’s expert reports to any experts which the first defendant chooses to commission in advance of the trial. The first defendant has refused to limit the conduct of its defence in such a way and as a result the plaintiff has refused to deliver copies of the said reports to the first defendant. Thus, an impasse has arisen between the parties and it has fallen upon this Court to determine the matter. Law
Within seven days of receipt of the plaintiff's schedule, the defendant or any other party or parties shall furnish to the plaintiff or any other party or parties a schedule listing all reports from expert witnesses intended to be called. Within seven days of the receipt of the schedule of the defendant or other party or parties, the parties shall exchange copies of the reports listed in the relevant schedule.”(emphasis added)
8. In order to guard against this injustice the plaintiff urges the Court to invoke its inherent jurisdiction and duty to protect the fairness of its own processes. In support of this contention the plaintiff cites inter alia Kelly J. in P.J Carroll & Company Ltd. v. The Minister for Health and Children [2005] 3 IR 457 where it was held:-
10. It is the first defendant’s case that disclosure by the plaintiff of his expert reports would not result in any unfairness as alleged by the plaintiff. It submits that there is no entitlement for a party to withhold a report merely because the other party does not have an expert. The first defendant argues that there can be no prejudice to the plaintiff as if any expert reports are commissioned by the first defendant, the plaintiff will receive the reports and will be afforded the opportunity to review these reports prior to the trial of the action. 11. In support of its argument the first defendant relies on the dicta of the Queen’s Bench Division of the High Court of England and Wales in Kirkup v. British Rail Engineering Limited [1983] 1 W.L.R 190 where it was held:-
13. In further support of its position the first defendant also submits that no unfairness or prejudice will result from disclosure of the expert reports as experts have an independent duty to the court. It is the first defendant’s argument that should it decide to commission an expert report at a later stage, the fact that their expert will have sight of the plaintiff’s expert reports would not result in any unfairness or prejudice as their expert owes a duty to the court to produce an independent uninfluenced report of his/her own. In support of this contention the first defendant relies on the judgement of Crestwell J. in National Justice Cia Naviera SA v. Prudential Assurance Company Limited [1993] 2 Lloyd’s Reports 68 where the learned trial judge emphasised that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to the form or content by the exigencies of litigation. 14. The first defendant further argues that the plaintiff is not entitled to imply into the rules a set of criteria that are not included and which cannot be read into O. 39, r.46 regarding an undertaking not to furnish expert reports. The first defendant argues that the rules of disclosure have evolved over time and it would therefore not be appropriate to draw up a series of steps which have not been included in the rules. 15. The first defendant finally argues that providing an undertaking not to furnish disclosed reports to any expert retained on behalf of the first defendant until after such expert has furnished his report would undermine the position of experts in furnishing reports to parties in litigation. The first defendant submits that an expert must be in a position to comment in a substantive manner on the facts in issue. Therefore, there is no purpose in retaining an expert to furnish a report who cannot do so on the basis of all available materials as this would not assist the court. In reply, the plaintiff submits that this position adopted by the first defendant is self-evidently inconsistent with the principle of simultaneous exchange of expert reports as per the Supreme Court’s decision in Kincaid. Conclusion 17. While the Court is not going so far as to express a view as to whether some calculated strategy to that effect exists in this case, it would hold with the plaintiff’s submissions. This is to do no more than follow and implement the decision of the Supreme Court in Kincaid v. Aer Lingus Teoranta [2003] 2 IR 314. 18. There is no suggestion in the present case that the first defendant does not intend to retain an expert or lacks the means to do so. Accordingly, I do not see this case as being one where there should be some exception to the normal litigation processes. 19. As the first defendant has certified that no expert report exists on its behalf to be furnished in accordance with O. 39, r.46(3) the onus has fallen upon the plaintiff to furnish his expert reports on the defendants which he accepts. However, in accordance with the Supreme Court decision in Kincaid it is the order of this Court that the plaintiff’s disclosure of his reports in accordance with O. 39, r.46(3) be conditional upon the first defendant’s undertaking that those reports will not be given, directly or indirectly, to any expert retained by the first defendant until after such expert has furnished his report. |