Court allows appeal holding expert reports not privileged if intended for trial, permitting party to withdraw witness.

THE SUPREME COURT

McGuinness J.

Geoghegan J.

McCracken J.

106/03

BETWEEN/

MARIA KINCAID

Plaintiff/Respondent

and

AER LINGUS TEORANTA

Defendant/Appellant

JUDGMENT of Mr. Justice Geoghegan delivered 9th of May 2003

In recent years a welcome innovation has been introduced into personal injury litigation. There is now a requirement that the parties

exchange expert reports where it is intended to call the relevant expert as a witness. It seems to have been decided by the powers

that be that neither amended rules of court nor still less a practice direction would be sufficient for the enforcement of such new

arrangement. Because of its effect on the long standing legal principles of privilege in relation to documents prepared for the purposes

of litigation a statutory backing was required. Hence the enactment of section 45 of the Courts and Court Officers Act, 1995 which

will be cited later on in this judgment. That section empowered the Superior Courts Rules Committee and the Circuit Court Rules

Committee to make rules requiring disclosure between the parties of any report or statement from any expert intended to be called to

give evidence of medical or paramedical opinion in relation to an issue in the case. The section also contained analogous provisions

relating to other kinds of experts’ reports and certain kinds of particulars and information appropriate to be exchanged. Apparently, it

proved difficult to draft satisfactory rules pursuant to this section but the current rules and those which are relevant to this appeal

are contained in the Rules of the Superior Courts (No. 6) (Disclosure of Reports and Statements), 1998 (S.I. No. 391 of 1998). These

are new rules (45-51) inserted into Order 39 of the Rules of the Superior Courts. The new Rule 45 contains a number of definitions

including a definition of “report”. But it is Rule 46 which is relevant to this appeal. In order to explain how the appeal arises and what

the issues are I think it essential to cite the entire rule which reads as follows:

“46. (1) The plaintiff in an action shall furnish to the other party or parties or their respective solicitors (as the case may be)

a schedule listing all reports from expert witnesses intended to be called within one month of the service of the notice of trial

in respect of the action or within such further time as may be agreed by the parties or permitted by the court.

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.

(2) The parties in an action shall exchange with the other party or parties or their respective solicitors (as the case may be)

the information and statements referred to in section 45(1)(a)(iii), (iv) and (v) within one month of the service of the notice

of trial or within such further time as may be agreed by the parties or permitted by the court.

(3) In any case where a party or his solicitor certifies in writing that no report exists which requires to be exchanged pursuant

to sub-rule (1), any other party shall, on the expiry of the time fixed, agreed or permitted as the case may be deliver any

report within the meaning of the section to all other parties to the proceedings.

(4) Any party who, subsequent to the delivery required by sub-rule (1) above, obtains any report within the meaning of the

section or the name and address of any further witness, shall forthwith deliver a copy of any such report or statement or

details of the name and address of such witness (as the case may be) to the other party or parties or their respective

solicitors (as the case may be).

(5) Service of any report, statement or information required to be exchanged or delivered may be effected by letter in writing

enclosing the report, statement or information required to be delivered by virtue of the section and may be sent by ordinary

prepaid post or in any other manner in which service is authorised by these rules. Such letter shall specifically state that the

service is for the purpose of complying with the requirements of section 45 of the Act and these rules. The court may on

application to it by any party to an action or of its own motion require that an affidavit or affidavits be filed by any party in

relation to proof of disclosure and service required by these rules in any case in which it appears to the court necessary so to

do.

(6) Any party who has previously delivered any report or statement or details of a witness may withdraw reliance upon such

by confirming by letter in writing that he does not now intend to call the author of such report or statement or such witness

to give evidence in the action. In such event the same privilege (if any) which existed in relation to such report or statement

shall be deemed to have always applied to it notwithstanding any exchange or delivery which may have taken place.”

In this personal injury action what happened was that the defendant/appellant included in its schedule of witnesses and reports

pursuant to the rules a medical report of Mr. Niall Mulvihill, a well-known orthopaedic surgeon. The plaintiff/respondent furnished

copies of all her listed reports. The defendant/appellant furnished copies of all its listed reports but omitted the report of Mr. Mulvihill.

This was because by letter dated the 18th of April, 2002 and before furnishing copies of listed reports the appellant informed the

respondent that Mr. Mulvihill would not now be called as a witness and that that being so there was no longer any obligation to

furnish a copy of his report. The respondent on the other hand says that the appellant is not entitled to withdraw reliance on Mr.

Mulvihill for the purposes of the disclosure rules until after it has first furnished to the respondent copies of all the reports listed in the

schedule. According to “counsels’ note for appeal” which purports to include the submissions made in the High Court and a note of

the ex tempore judgment of the learned High Court judge (Kearns J.) and which has been approved by him, the respondent conceded

that the appellant was entitled to withdraw reliance on a report listed in the appellant’s schedule under Rule 46(6) but the respondent

argued that this was only allowed after delivery of the report. In making this submission the respondent relied on a literal parsing of

Rule 46(6). I think it would be fair to say that in the court below and in this court the main plank of the respondent’s argument is that

that sub-rule should be construed as actually prohibiting a party from withdrawing reliance on a report included in a schedule until

after the report has been delivered. I believe, for reasons which I will indicate, that that interpretation is fallacious. But before I

elaborate on why I am of that view, I think it desirable to refer to the actual judgment of the learned High Court judge. He found that

it was not an “easy call to make” and that O. 39, r. 46 seemed to contain conflicting provisions. But the learned judge came down in

favour of the plaintiff/respondent on the grounds that the rules were intended to provide for “an element of mutuality which would

guarantee transparency between the parties” and he seems to have considered it to be contrary to the intentions of the Rules-

making Committee that one side could see the report of another and then, perhaps on foot of what it saw, withdraw reliance on a

witness included in its schedule of reports and on the report itself. As I will endeavour to explain, it does not necessarily follow on the

wording of the rules that that abuse, if it is an abuse, could necessarily be achieved but even if it were so it is not in my opinion

relevant to the question at issue. The purpose of the rules is not to disclose the strengths and weaknesses of each other’s case but

rather to prevent surprise evidence being thrown up at a trial which the other party at that stage is unable to deal with.

I return now to the interpretation of Rule 46(6). I cannot agree that it means that a party is prohibited from withdrawing reliance

unless he has previously delivered the report. The sub-rule in my opinion is not prescribing any such thing. Rather, it is trying to cope

with the situation which would arise if, after delivery of such a report, the party who has delivered it decides he is no longer going to

rely on that witness. The report, even though by that time it has got into the hands of the opposing party, is nevertheless to be

deemed to have been privileged from the beginning. The situation which has arisen in this case is simply not expressly covered by the

rule. With all respect, I do not necessarily agree with the learned High Court judge that there is a conflict in the rules. It seems to me

that it is more a question of there not being an express provision to cover every eventuality. The fact that there may be no express

provision dealing with the point which has arisen in this case does not mean that the rules cannot be interpreted as implicitly covering

the problem. This would seem to be particularly so in the light of the fact that the rules are made pursuant to a special statutory

provision. Clearly, if the rules did not exist Mr. Mulvihill’s report would be a privileged document in the hands of the appellant and the

respondent would have no right to see it. What Rule 46(6) is dealing with is the problem which arises when a privileged document is in

fact in the hands of another party. That is not the case here.

So as to apply a proper interpretation to the rules to cover the actual situation which has arisen, it is necessary to look to the

underlying statutory provision and, therefore, I intend to cite in full the relevant part of section 45 of the 1995 Act, that is to say,

section 45(1)(a). That part reads as follows:

“45.—(1) Notwithstanding any enactment or rule of law by virtue of which documents prepared for the purpose of pending or

contemplated civil proceedings (or in connection with the obtaining or giving of legal advice) are in certain circumstances

privileged from disclosure, the Superior Courts Rules Committee, or the Circuit Court Rules Committee as the case may be,

may, with the concurrence of the Minister, make rules—

( a ) requiring any party to a High Court or Circuit Court personal injuries action, to disclose to the other party or parties,

without the necessity of any application to court by either party to allow such disclosure, by such time or date as may be

specified in the rules, the following information, namely—

(i) any report or statement from any expert intended to be called to give evidence of medical or para-medical opinion in

relation to an issue in the case;

(ii) any report or statement from any other expert of the evidence intended to be given by that expert in relation to an issue

in the case;

(iii) the names and addresses of all witnesses intended to be called to give evidence as to facts in the case;

(iv) a full statement of all items of special damage together with appropriate vouchers, or statements from witnesses by

whose evidence such loss would be proved in the action;

(v) a written statement from the Department of Social Welfare showing all payments made to a plaintiff subsequent to an

accident or an authorisation from the plaintiff to the defendant to apply for such information; and

(vi) such other relevant information or documentation (as may be provided for by rules of court) so as to facilitate the trial of

such personal injuries actions;…”

It should be noted that in the case of each of the categories of information whether documentary or otherwise required under (i) to

(vi) above they are each by their express wording directed towards the hearing of the action. The only kind of report or statement

from any expert that is required is a report or statement from an expert “intended to be called to give evidence” in the case of a

medical witness or in the case of a non-medical expert a report or statement of evidence “intended to be given by that expert”. Only

the names and addresses of witnesses “intended to be called to give evidence” need be furnished. The statement of all items of

special damages has to be furnished together with appropriate vouchers or statements “from witnesses by whose evidence such loss

would be proved in the action.” It is obvious that the statement from the Department of Social Welfare is also required for the

purposes of the action and, finally, the generic provision relating to “other relevant information or documentation” is such “as to

facilitate the trial of such personal injury action”. It would seem to me, therefore, that the Oireachtas was not intending to give any

power to the Rules-making Committees to alter the rules of privilege except in relation to evidence intended to be used at the

hearing. Nor would it ever have been intended by the Oireachtas to prohibit a party from changing his mind as to whether he wanted

to call a particular witness or not during some particular period within the pendency of an action. I must conclude therefore that once

the defendant/appellant in this case changed its mind about calling Mr. Mulvihill it could not have been obliged thereafter to furnish

Mr. Mulvihill’s report because the report was then a privileged document. If the rules were to be interpreted as providing otherwise I

would be of opinion that the Rules-making Committee was acting ultra vires but I see no reason to interpret the rules in the way

contended for by the plaintiff/respondent and I would, therefore, allow the appeal and set aside the order made by the learned judge

of the High Court.

There is just one other observation which I think it relevant to make. The obligation under O. 39, r. 46(1) is to “exchange” scheduled

reports. If a party’s solicitor ensures that the “exchange” is contemporaneous there is no danger of the so called “abuse” arising.

If each party’s solicitor ensures that an actual contemporaneous exchange of reports takes place there is no danger that the

procedure can be abused in the manner suggested by the plaintiff.