Disclosure of expert reports

Published 28 March 2023

Joan O’Flynn v HSE, Sonic Healthcare (Ireland) Limited and Medlab Pathology Limited and Clinical Pathology Laboratories
Incorporated 2022 IECA 83

This is another case which arises from the CervicalCheck controversy where the Plaintiff’s smear test was allegedly incorrectly analysed and incorrectly reported as normal and the Plaintiff subsequently developed cervical cancer.

The issue arising in this case related to disclosure of expert reports pursuant to Statutory Instrument SI 391 of 1998.

The Plaintiff served her schedule of expert witnesses listing 9 experts. The fourth named Defendant (CPL) delivered its schedule with no experts listed. CPL then requested an exchange of reports on the basis of a Harrington undertaking. The Harrington undertaking came about following the case of Harrington v Cork City Council & Anor which confirmed that Party A, who does have an expert report, can insist on an undertaking from Party B that they will not directly or indirectly disclose Party A’s expert report to the expert retained by Party B, until Party B’s expert has completed their report. In the absence of such an undertaking, Party A can refuse to furnish their report to Party B. It is also worth noting that an exception to this principle may arise where the party does not intend to retain such an expert or lacks the means to do so.

In this case, the Plaintiff did not disclose the reports and the Defendant issued a motion seeking an order to compel the Plaintiff to exchange their reports.

In the High Court the Plaintiff argued that CPL was seeking to assess the strengths and weaknesses of the Plaintiff’s claim. The Plaintiff argued that as a laboratory, CPL had plenty of resources and expertise available to them and as such were not a normal Defendant. Judge Cross accepted this argument and in the circumstances deemed that a Harrington undertaken would not be sufficient to ensure fairness and was of the view that there was a risk of litigious advantage to CPL and refused the order sought.

The matter was appealed to the Court of Appeal where the Court also held that a Harrington undertaking was not sufficient either. Mr Justice Noonan concluded that there are significant shortcomings in the disclosure regime introduced by SI 391 and they might benefit from recalibration. He was of the view that “the rules themselves cannot be permitted to become a source of unfairness”.

The Court set out a number of ways to achieve fairness in this case between the parties which included some of the following:
1. Each party’s schedule to identify the experts and their expertise whether a written report or not.
2. Simultaneous exchange of reports.
3. Exchange on a like for like basis.
4. If the Defendant wishes to call an expert to address an issue raised by one of the Plaintiff’s experts then it must satisfy the Court that it is in the best interests of justice to do so.
5. The parties are free to withdraw an expert at any stage.

The Court of Appeal dismissed the appeal by CPL and in doing so stated that the rules themselves cannot be allowed to create an unfair situation and that “ ….where a literal application of rules has the potential to result in injustice, the court will intervene to ensure the equality of arms that the rules were intended to assure”.