Supreme Court of Ireland Decisions

1. Mr Justice Johnson was of the view that the issue in the present matter posed the question “What is an expert?”. He concluded that an engineer in the employment of a corporation or a county council was not “an expert” or “an expert witness” for the purposes of Order 39 Rules 45 and 46 of the Rules of the Superior Courts as inserted by the Rules of the Superior Courts (No 6) (Disclosure of Reports and Statements) 1998 (SI No 391 of 1998). Those Rules (to which I will refer to as the “Disclosure Rules”) were made pursuant to section 45 of the Courts and Courts Officers Act, 1995, which provides as follows:-

2. The operative part of the Disclosure Rules is contained in Rule 46 (1) which provides as follows: -

3. The Rules go on to provide sanctions - as permitted by the governing legislation - for failure to comply with the Rules but Rule 50 contains a particular provision material to the present proceedings and paragraph 1 of that Rule provides as follows:-

4. The action herein is a personal injuries action within the meaning of the Disclosure Rules. From the pleadings it appears that the Plaintiff was injured in an accident which occurred on the 30th August, 1997. On that date he was travelling in a motor car driven by the Third Party on a public highway near Béal na Bláth in the County of Cork when the driver was obliged, it is alleged, to apply her brakes to avoid an impact at a collapsed bridge on the roadway. It is alleged that the vehicle driven by the Third Party did strike the collapsed bridge and that thereafter a motor car owned and driven by the First named Defendant crashed into the rear of the vehicle in which the Plaintiff was travelling. As against the Secondly named Defendant, the Cork County Council, it was alleged amongst other things that they were negligent in that they:-

5. When the Third Party had been joined and the pleadings closed the solicitors on behalf of the Plaintiff wrote to the solicitors on behalf of the County Council on 1st December, 1999, settings out lists of the witnesses whom they intended calling at the hearing of the action and setting out the dates of the reports provided by various expert witnesses.

6. By notice of motion dated the 22nd day of February, 2000, Cork County Council applied to the Court for an order pursuant to Order 39 Rule 50 (1) aforesaid declaring that in the interests of justice the provisions of Order 39 Rule 46 of the Disclosure Rules should not apply in relation to any report or statement (or portion thereof), generated for the purposes of the proceedings, by Cork County Council Executive Engineer Raymond Crowley or Cork County Engineer CB Devlin. That application was grounded upon the affidavit of Mr Jeremy O’Connor of Messrs Philip WM Bass & Co, Solicitors who explained that Mr Crowley and Mr Devlin were permanent employees of the County Council and that each of them had furnished reports not as experts but as employees of the Defendant and contended that accordingly those reports were not subject to the provisions of the Disclosure Rules.

7. It was in those circumstances that Mr Justice Johnson posed the question “What is an expert?” and concluded that where “A corporation or a county council rely on their own engineers, then, for the purposes of litigation, they are not considered to be expert witnesses “. Whilst I find myself in disagreement with the conclusion reached by the learned Judge the problems to which the Disclosure Rules give rise and which were identified in argument before this Court are serious and may not admit of a simple or immediate solution. The reports dated the 28th October 1997 and 21St May, 1998 by Messrs Crowley & Devlin were handed into the Court by agreement between the parties. Each of the authors is of

8. I do not think it is possible to escape a similar conclusion here. Of course it must be remembered that reports such as those obtained by the County Council from their own engineers are documents which would be privileged from discovery. It is only if and when the employer determines to call the authors of the reports to give evidence that the requirement of disclosure arises. Clearly the Disclosure Rules are designed to forewarn other

9. In the present case the County Council feel that they are placed in an invidious position because the engineers in question being their employees have reported more fully and widely than might be expected by an independent expert. On the other hand if that or any other factor of itself were to permit an employee/ expert to escape the requirements of the Disclosure Rules it would mean that substantial corporations with a wide variety of in-house experts would have the advantage of knowing the expert evidence to be adduced by their opponents without having themselves to provide a comparable facility. That would be a manifest injustice.

10. The Disclosure Rules represent a radical change in the manner in which personal injury litigation will be processed in this jurisdiction. No doubt there will be difficulties in adjusting to the new dispensation and also in the application and interpretation of the Rules themselves. Indeed it must be expected that further problems will arise, On the other hand it

11. In my view the judgment and order of Mr Justice Johnson must be reversed but I would remit the matter to the learned Judge to afford the Respondents the opportunity of arguing - if they think fit - that certain parts of the reports of the engineers should be deleted before being disclosed to the Plaintiff.