High Court refuses pre-trial motion to strike out expert report on mortgage finance dispute.

THE HIGH COURT

[2025] IEHC 198

Record No. 2014/5126P

Between:

SHANE LITTLE AND NICOLA LITTLE

Plaintiffs

-and-

IRISH BANK RESOLUTION CORPORATION LIMITED (IN SPECIAL LIQUIDATION)

-and-

LAUNCHESTON PROPERTY FINANCE LIMITED DAC (IN LIQUIDATION)

-and-

PEPPER FINANCE CORPORATION (IRELAND) DAC

-and-

EVERYDAY FINANCE DAC trading as LINK FINANCIAL

Respondents

JUDGMENT of Ms Justice Nuala Jackson delivered on the 24th February 2025.

INTRODUCTION

1. This case yet again provides an example of all too familiar litigation longevity consequential upon the economic tsunami which hit Ireland in 2009.

2. The factual circumstances were straightforward. The plaintiffs were purchasing a property and sought to raise finance to do so. To this end, they entered into arrangements with the Defendants’ predecessors. It is as to the nature of these arrangements, the circumstances surrounding them and the sequalae which transpired that the current proceedings emerge. APPLICATION FOR DETERMINATION

3. The matter comes before me in a very limited context and seeking that a very net legal issue be determined. Both parties have retained appropriate experts to prepare reports and to provide expert evidence to the court in due course on the issue of the quantum of loss sustained by the plaintiffs. It cannot be said that this is not a complex matter given the various imponderables which arise.

4. There have been four such reports, two from the Plaintiffs’ expert and two from the First Named Defendant’s expert. There was a fifth report from a third expert on behalf of the Plaintiffs but this was subsequently withdrawn by agreement between the parties.

5. The relief being sought in the motion is:

“An Order striking out and/or declaring as inadmissible and/or irrelevant and/or unnecessary to the issues in the proceedings the proposed evidence contained in the Expert Report of Declan Walsh dated the 30th September 2024.”

6. The terms of the motion indicate that the Plaintiffs seek the exclusion of the entirety of the Second Walsh Report (the fourth report and hereinafter ‘SWR’) as it is to be assumed that the entirety thereof is “the proposed evidence” of this expert at hearing.

The matter became more nuanced at hearing in that: first, the First Named Defendant had, prior to the issuing of the motion, proffered the exclusion of certain portions of the SWR and this was a position which this Defendant maintained in the context of this motion and secondly, the Plaintiffs, while maintaining a position of full exclusion in the motion issued, in correspondence and on affidavit appeared to focus on the excision of portions of the SWR which they considered to offend.

7. The motion is grounded upon the Affidavit of the First Named Plaintiff sworn on the 13th November 2024 with a further Affidavit being sworn by him by way of reply to the Affidavit on behalf of the First Named Defendant sworn on the 26th November 2024. The objections to admissibility are deposed to be

(a) Procedural The complaints in this regard appear to relate to delay and a failure to abide by an agreed timetable in relation to the provision of the Fourth Report. While issues of delay must always be of concern in relation to proceedings which commenced by Plenary Summons issued on the 6th June 2014 and have not yet come on for hearing, I do not consider it necessary for me to reflect upon the full trajectory of progress (or lack thereof) relevant to the within proceedings but rather I confine my focus to delay issues pertaining to the second tranche of expert reports as it is only these circumstances which are relevant to the issues before me. It would appear that the Plaintiffs’ expert witness provided a first report on the 27th November 2020. The First Named Defendant’s expert’s report in response is dated the 28th February 2021.

The second report of the Plaintiffs’ expert came on the 22nd February 2024, with the second report of the First Named Defendant’s expert being dated on or about the 30th September 2024. Mr. Little in his first Affidavit says that, according to an agreed timetable, this Second Report of the First Named Defendant was due on the 22nd March 2024 and complains of consequent delay. I note that the due date of this report is but a month from the date of the Second Report of the Plaintiffs’ expert where it appears to be envisaged that these reports would be in response to each other. Mr. Little complains that there is an interval of approximately three years between the reports of the First Named Defendant’s expert. In this regard, it must be reflected that there would appear to be an interval of three years and three months between the first and second Reports of the Plaintiffs’ expert. The detail of the sequence of events in this regard was averred to with greater clarity in the First Affidavit of Ciaran O Conluain for the First Named Defendant. It would appear that by Order of this Court (O’Connor J.) of the 6th March 2020, the parties were directed to deliver witness statements and expert reports in advance of trial. In December 2020, the Plaintiffs did so, sending the first expert report (dated November 2020).

The responding expert report was completed at the end of February 2021 and delivered in March of 2021. There would appear to have been an amendment of pleadings thereafter with the Plaintiffs indicating in correspondence that they intended to deliver an updated report by the 15th November 2022. (In his Affidavit, Mr. O Conluain deposes to the intended date indicated by the Plaintiffs for this report to be the 13th December 2022 but I was provided with a booklet of correspondence and the letter of the 25th October 2022 from the Plaintiffs’ then solicitors appears to propose a timetable that included the Updated Plaintiffs’ report would be delivered by the 15th November 2022 and the Updated Defendant’s expert report would be delivered by the 13th December 2022).

Not much (if anything) turns on this as it is clear that the updated report of the Plaintiffs (dated the 27th February 2024) was at best delivered 14.5 months later than originally proposed, at worst 15.5 months later than the dates proposed in the original timetable. It is clear that, as envisaged timetables were not achieved, new ones replaced them and, in this context, a date of the 22nd March 2024 for the delivery of the First Named Defendant’s updated expert’s report was agreed (by letter and responding letter both of the 7th February 2024).

All of the correspondence seems to envisage one updated expert report by each side. Matters appear to have been further complicated by the delivery by the Plaintiffs of two expert reports (one an update from the expert previously retained and one from a new expert), the second of which was the subject of a motion brought by the First Named Defendant to strike it out which motion was ultimately struck out on the basis that the report of the new expert was withdrawn. The period between the delivery of the Plaintiffs’ second expert report and that of the First Named Defendant (being a period of approximately six months) must be viewed in this context.

Having considered the litigation history and correspondence herein, I do not consider the issue of delay to be of assistance in the determination of the matter before me. These are, in my view, more correctly matters for case management. I note the averment of Mr. O Conluain (at paragraph 16 of his Affidavit) that such permissions as are required in relation to the delivery of the Expert Report under consideration herein will be addressed at the next case management date. This seems to me to be appropriate.

(b) Substantive

(i) The Expert has sought to offer opinions on issues of law. In this regard, Mr. Little in his Affidavit references opinion as to whether or not the First Named Defendant was negligent, the causative effect or otherwise of such negligence and a stated sequence of events which, the Plaintiffs’ allege, constitutes the setting out of a wholly new defence. In this regard, reference is made to section 1.36 and sections 3.7 to 3.31 of the SWR;

(ii) The Expert has purported to give evidence pertaining to issues not within his range of expertise and constitute speculation and/or hearsay. Mr.

Little avers that the expert has set out a sequence of events based upon his own speculation rather than upon factual evidence provided. In this regard, he avers that the expert is attempting to fill an evidential gap. He states that the expert has been retained to address “the sums claimed” by the Plaintiffs and that “This task does not permit or require Mr. Walsh to draw inferences from documents which originate from outside his area of professional expertise.” In this regard, objection is made to paragraphs

1.34 to 1.37 of the report. Complaint is also made in relation to Mr.

Walsh’s references to the “reasonableness” of the Plaintiffs’ claim (paragraph 1.48). It is further contended that Mr. Walsh, an accountancy expert, strays into areas of banking expertise in his consideration of loan extension events and processes;

(iii) The Expert purports to proffer a “defence” which is outside the pleadings.

This concern relates to Mr. Walsh’s suggestion that the non-conversion of a loan arose from the request of the Plaintiffs. He says that this is outside his area of expertise, outside his area of knowledge and is outside the pleadings. He avers that no factual basis for this assertion is supported by witness statements filed;

(iv) The SWR fails to confine itself to issues which the Expert is addressing namely the quantification of loss. In this regard, the overarching complaints of the Plaintiffs are averred to by Mr. Little as follows at paragraph 36 of his first Affidavit:

“I say and believe that it is clear from the Second Walsh report that Mr. Walsh’s field of expertise is as a chartered accountant.

He is entitled to comment on the issue within his expertise, being the quantification of the Plaintiffs’ loss, and to join issue with Mr.

Robinson in respect thereof. However, he has instead sought to give opinion evidence on issues of law and issues of causation. In the absence of any witness statement from INBS he has assumed a role of a witness of fact as to what happened in INBS during the Plaintiffs’ engagement with that institution, without any witness.

He has also repeatedly breached the rule against hearsay in this context and has wrongly sought to offer by stealth a new, unpleaded, and unparticularised, defence.”;

(v) The Expert has failed to give consideration to all of the relevant publicly available information and/or has not been provided with all relevant information in this regard. This complaint appears to derive from paragraph 1.25 of the SWR. This would appear to be a somewhat pro forma statement in the Report (ref. paragraph 1.7 of First Walsh Report).

Mr. Little avers an inability to identify publicly available information upon which the expert did rely and, additionally, recites an amount of publicly available information to which the expert ought to have had regard.

8. Having considered the procedural/delay complaints and having determined that these are properly matters to be addressed in case management, I therefore intend to proceed to consider this application on the basis of the substantive complaints made in relation to the SWR.

PRE-MOTION CORRESPONDENCE

9. Before so doing, it is important to consider the correspondence between the parties prior to the issuing of this motion. By letter of the 25th October 2024, the Plaintiffs’ set out their objections to the SWR. This letter does not appear to me to seek the withdrawal of the report in its entirety. The issues to which the Plaintiffs take objection are set out (these remain substantially the same matters as are at issue in this motion) and the letter states “We hereby call on you to confirm that your client will withdraw the sections of Mr. Walsh’s Report referred to above as a matter of urgency.” The initial response of the First Named Defendant, by letter of the 29th October 2024, was to reject these complaints and stand over the totality of the report. Having sought to distinguish between the objection previously made by the First Named Defendant to the report of a second expert of the Plaintiffs and this objection, the letter states: “If you client does issue a motion, which is completely needless, that motion is clearly capable of being determined as part of the trial of these proceedings. In fact, the trial judge will be best placed to determine which aspects of our client’s report should be taken into account and which should be disregarded.” By letter of the 8th November 2024 (6 days prior to the issuing of the motion and 5 days prior to the swearing of his Affidavit by Mr.

Little), the First Named Defendant somewhat revised its position. They indicated that they were prepared to take a “constructive” approach and, to this end, would not object to the deletion of three sentences of the SWR being

• Paragraph 1.36 “The documentation available to me does not appear to support the Plaintiffs assertions that the matter arose due to negligence on the part of the First Named Defendant and that they were unaware of the rationale for not putting the long-term loan in place.

• Paragraph 3.26 “The documentation available to me does not appear to support the Plaintiffs assertions that the matter arose due to negligence on the part of the First Named Defendant and that they were unaware of the rationale for not putting the long-term loan in place.”

• Paragraph 3.23(a) “It is possible that part of these funds came from accumulated rental income collected during 2008 and 2009”.

10. The letter was clear, however, that the First Named Defendant did not accept the position of the Plaintiffs as regards the postulating of a sequence of events by the expert and offering opinion evidence on such sequence of events. The First Named Defendant states “The ‘sequence of events’ set forth in the SWR is derived from the documents with which he was provided and sets out the evidential basis upon which he has drawn his conclusions (as he is required to do per Duffy v. McGee).”

11. I do not doubt the averment of Mr. Little that preparation of the motion papers had commenced by the 8th November 2024 given the timeline referenced above. The Plaintiffs responded rejecting the First Named Defendant’s proposals by letter of the 13th November 2024 and proceeded to issue the motion. The substantive response states: “Please note that despite the offer contained in your letter of 8 November 2024, to withdraw three sentences from the Expert Report of Declan Walsh dated 30 September 2024, we remain of the view that a Motion is necessary.” The Plaintiffs’ remained of the view that the excisions suggested were insufficient. It should be recorded that in the submissions of the First Named Defendant in the context of this application, it is confirmed that it remains agreeable to the suggested deletions set out in the letter of the 8th November 2024.

FIRST AFFIDAVIT OF CIARAN O CONLUAIN

12. I have previously referred to Mr. O Conluain’s Affidavit as it relates to timelines and the procedural complaints concerning delay. He furthermore regrets the fact that correspondence has not been more specific in relation to the extractions which the Plaintiffs contend should be made from the report. He identifies the matter remaining at issue between the parties:

• The sequence of events (paragraph 3.7 of the SWR). He avers that these are facts which flow from the documentation provided to the expert, do not purport to and could not set out a new defence and that, if it is contested that the events do not flow from the documents provided, this is a matter for cross-examination at trial.

• Views of the expert on the reasonableness of the Plaintiffs’ claim in fact relate to “the reasonableness of assumptions which underly the calculations of the losses claimed by the Plaintiffs, …” and he can be cross-examined on this at trial.

• The assumptions regarding the validity of facility extensions are not matters of expert opinion (whether the extensions were valid or not is a question of law)

and these are not matters upon which the expert purports to give expect banking opinion but rather are assumptions made relevant to areas within the expertise of Mr. Walsh.

• Disputes relating to lack of regard for publicly available information, it is averred, reference irrelevant publicly available information or information which the expert did in fact take into account or are matters which can be put to the expert in cross-examination.

• The remaining matters at issue in relation to the SWR go to the weight to be attached to the evidence rather than its admissibility. They are matters best addressed by the trial judge at hearing.

SECOND AFFIDAVIT OF SHANE LITTLE

13. He complains that the replying Affidavit filed by the First Named Defendant was sworn by a solicitor and therefore consists largely of hearsay and speculation/belief as to what the expert did or did not read, think or intend. The portions of the report which are under complaint are specified being:

• Section 1 in particular Paragraph 1.36 – beyond the scope of professional expertise

• Section 3 in particular Paragraphs 3.7 – 3.31 – beyond the scope of professional expertise

• Paragraph 1.34 – 1.37 – the “factual sequence of events”

• Paragraph 1.48 – the “reasonableness” of the claim

• Section 3 – unqualified to make the observations therein

THE LAW

Expert witnesses

14. Order 39 rule 57(1) of the Rules of the Superior Courts (‘RSC’) states:

“It is the duty of an expert to assist the Court as to matters within his or her field of expertise. This duty overrides any obligation to any party paying the fee of the expert.”

15. Rule 58(1) of Order 39 of the RSC states:

“Expert evidence shall be restricted to that which is reasonably required to enable the Court to determine the proceedings.”

16. The duties and obligations of experts who prepare expert reports in the context of litigation are set out in Duffy v. McGee [2022] IECA 254. It must, of course, be remembered that in that instance the evidence of the experts had been heard at trial and the Court was not addressing the exclusion of such evidence, in whole or in part, prior to the hearing. Noonan J. recited and endorsed the principles concerning experts set out in the judgment of Cresswell J. in National Justice Compania Naviera S.A. v. Prudential Assurance Co. Ltd (The Ikarian Reefer) [1993] 2 Lloyds Rep. 68 at pp.

81 – 82:

“89. The classic statement of the duties of experts, widely recognised in the common law world, is to be found in the judgment of Cresswell J. in National Justice Compania Naviera S.A. v. Prudential Assurance Co. Ltd (The Ikarian Reefer) [1993] 2 Lloyds Rep. 68 at 81-82:

“The duties and responsibilities of expert witnesses in civil cases include the following:

1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation (per Lord Wilberforce, Whitehouse v. Jordans [1981] 1 WLR 246 at p.256).

2. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. (See Polivitte Limited v. Commercial Union Assurance Company [1987] 1 Lloyds Rep. 379 at 386 per Mr. Justice Garland and Re J, [1990] FCR193 per Mr. Justice Cazalet). An expert witness in the High Court should never assume the role of an advocate.

3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion (Re J Sup.).

4. An expert witness should make it clear when a particular question or issue falls outside his expertise.

5. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one (Re J Sup.). In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report (Derby & Co. Ltd. & Ors. v. Weldon & Ors., The Times, November 9, 1990 per Lord Justice Staughton).

6. If after exchange of reports, an expert witness changes his view on a material matter having read the other side’s experts report or for any other reason, such a change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court.

7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be proved to the opposite parties at the same time as the exchange of reports (see 15.5 of the Guide to Commercial Court Practice).””

17. Relevant to the present case, in particular, are:

1. The provision of objective unbiased opinion in relation to matters within his expertise. (It is acknowledged in this case that Mr. Walsh’s expertise was in accountancy and not banking). This duty of independence was emphasised by the Supreme Court in Emerald Meats v. Minister for Agriculture [201] IESC 48.

2. The expert should never assume the role of an advocate. This is clearly re-stated in McKillan v. Tynan [2020] IEHC 189.

3. The facts or assumptions upon which his opinion is based should be stated.

4. Material facts should not be omitted (whether in favour or against the concluded opinion);

5. The range of expertise should be acknowledged;

6. Qualifications to the opinions expressed based on lack of or insufficient information should be stated.

18. It goes without saying (although not included in the listed duties and responsibilities in The Ikarian Reefer), the expert witness is not the judge either as to issues of fact, issues of law or conclusions on liability.

19. It is amply clear that while expert opinions derive from and are dependent upon facts and, as the expert is not the litigation fact finder, a delicate exercise must be undertaken by the expert in this regard. Noonan J. explained this as follows:

“94. Thus, where the facts are in dispute, the expert should make clear which version of events forms the basis for his or her opinion and what the consequences for that opinion are if an alternative version is accepted. In that analysis, however, it is no function of the expert to advocate for a particular resolution of factual controversies as that would be to usurp the function of the court. The duty of impartiality and independence necessarily imports a willingness on the part of the expert to remain open to alternative possibilities and if necessary, to change his or her mind when confronted with new information.”

20. I was also referred to the judgment of McDonald J. in Hyper Trust Limited v. FBD Insurance plc [2021] IEHC 78. The matter at issue there was somewhat different to the present case. It concerned an application to restrict expert evidence under Order 39 rule 58(1) of the RSC. This requires a court to consider what expert evidence is reasonably required to enable the Court to determine the proceedings. This is not the matter under consideration in this instance. Here, application is being made to exclude an expert report or to excise portions on it based upon the legal obligations attaching to such evidence. It seems to me that these are very different applications. In addition, the application in that case was heard in the course of the hearing (Day 5) to the trial judge, which is also a very different situation to the present.

Exclusion in limine

21. Clearly, the principles recited above must inform the proposed evidence of the experts in this instance but the particular issue here is whether the complaints of the Plaintiffs, if justified, relate to inadmissibility or weight of evidence and, further, whether it is appropriate for this to be decided in advance of the hearing or whether this is best left to be decided by the trial judge.

22. The jurisdiction to strike out a witness statement or expert report or a portion thereof in limine is clearly established as are the rules applicable to the exercise of such jurisdiction. I have been referred to the dictum of Charleton J. in Condron v. ACC Bank [2012] IEHC 395:

“19. It is clear that a judge may, whether during a trial or in advance of a trial, strike out a pleading which is scandalous and that a judge may, where an extreme situation warrants it, strike out either an entire witness statement or a portion of a witness statement because it is either deliberately prejudicial to the case or is demonstrably of no possible assistance to the issues at trial. The burden in that regard will rarely be met. Expert witnesses are not in this category of relevant evidence since they are not witnesses as to fact. The purpose of an expert witness is to enable the court to be instructed on arcane disciplines which are outside the experience of a judge or jury. Experts have a particular privilege before the courts. They are entitled to express an opinion.

In doing so, their entitlement is predicated upon also informing the court of the factors which make up their opinion and supplying to the court the elements of knowledge which long study and experience has equipped them so that, armed with that analysis and the elements of arriving there, the court may be enabled to take a different view to their opinion. Experts are also privileged by being able to express a view on the ultimate issue before the court; no other witness is so entitled. This is because the unusual nature of the issue that requires their expertise permits a view to be expressed, sometimes but not in every case, on an issue upon which the case may turn. It is clear that expert evidence, in contrast to evidence as to fact, may be controlled either by rules of court or by the entitlement of a court to hear cases in a focused manner. For the benefit of the constitutional right of access, to the courts may exclude repetition and take such steps as are necessary to render hearings a fair contest. Such control serves to establish a balance between those who may be rich enough to engage several experts and those who have limited funds. Hearings are very expensive. Long hearings made repetitive by multiple experts addressing the same issue for the same party are prohibitively expensive. The courts are entitled to control their own procedures in the interests of fairness. That is what the Constitution predicates by establishing an entitlement to fair trials.”

23. Paragraph 17 of the judgment is also informative:

“Pre-trial exclusion of evidence

17. Lastly, it is argued that a court apart from the court of trial has jurisdiction to hear an argument as to admissibility in advance of the trial and to exclude evidence. It must firstly be noted that the trial judge is in the best position to judge the real issues in the case: when the case is opened; when the papers are read and as the case develops, what is crucial to the disposal of the case becomes increasingly obvious. It would very rarely occur that a judge, in advance of the trial, with access to only affidavit evidence and limited papers would even be in a position to make an informed decision. Such an approach of pre-trial motion on the admissibility of evidence would interfere with the discretion of the trial judge to run the trial in the way that best enables admissible evidence to be called and justice to be done.”

Charleton J. proceeded to reference the decision of Mann J. in Wilkinson v. West Coast Capital and Others [2005] EWHC 1606 [2005] Al E.R. 321.

“5. Those cases, and indeed others in a similar vein, illustrate the very important powers of the court to control proceedings before it to make sure they remain manageable, proportionate and fair to the parties. If one were constructing a list of cases to which that power might be thought to be particularly appropriate, unfair prejudice petitions would be fairly high on the list. However, desirable though the power to control evidence obviously is, particular care must in my view be taken when it is sought to exercise the power before a trial. It is noteworthy that the two cases which I have referred to above were both cases in which the issues as to evidence arose during the course of trials. By the time that the issue arises in that context, the judge is likely to have a much fuller overall picture of the issues in the case and of the evidence which is going to be adduced in support of them. In a large number of cases, he or she is likely to be in a better position to make judgments which turn on the real value of the line of evidence in question and its proportionality, and in very many cases its admissibility. A court which is asked to approach these questions at the interlocutory stage is much less likely to have that picture, and should be that much more careful in forming a view that the evidence is going to be irrelevant, or if relevant, unhelpful and/or disproportionate. One must also bear in mind the extent to which it is desirable to consider these matters at all at an interlocutory stage. One must be on one's guard, in applications such as this, not to allow case management in relation to witness statements to give rise to significant timeand cost-wasting applications; those should not be encouraged. In my view, I should only strike out the parts of the witness statements which I am currently considering if it is quite plain to me that, no matter how the proceedings look at trial, the evidence will never appear to be either relevant or, if relevant, will never be sufficiently helpful to make it right to a low the party in question to adduce it. With evidence of this nature, that is likely to be quite a heavy burden.”

24. The exclusion of portions of witness statements in limine was also considered by Kelly.

J. in Bank of Ireland v. O’Donnell [2012] IEHC 475. Having referred to the judgment of Charleton J. above, Kelly J. referenced “the heavy burden” attaching to an application to exclude evidence in advance of trial.

25. The First Named Defendant also referenced the decision of the English Court of Appeal in Rogers and Another v. Hoyle [2015] QB 265. In this case, an action in negligence arising out of an air accident, the defendant brought an application in advance of trial sought to exclude a report which had been prepared by a body with statutory responsibility in relation to air accidents which report the plaintiff sought to admit into evidence. The application was unsuccessful both at first instance and on appeal. The dicta of Leggatt J. at first instance, approved on appeal, are useful in the present instance: ‘115. This is not to say that all the findings in the AAIB Report are of equal significance. To the extent that they reflect or may be taken from their nature to reflect matters of expertise, the court will accord them weight. To the extent that they consist of inferences drawn from factual evidence which involve no special expertise and which the court is equally well qualified to draw, the court will not accord weight to the findings over and above the evidence on which they are based.

116. In this regard the AAIB Report is similar, as it seems to me, to many experts' reports commissioned by parties to litigation. It is common to find in such reports (particularly from experts in certain disciplines) some statements of opinion based on an evaluation of factual evidence of a kind which does not deploy any expert knowledge and which the court is as well placed to make as the author of the report. Such evidence is not helpful and is not evidence to which the court will have regard. It seems to me preferable, however, to treat this as a question of weight rather than admissibility, particularly since there is no clear point at which an expert's specialised knowledge and experience ceases to inform and give some added value to the expert's opinions. It is a matter of degree. The more the opinions of the expert are based on special knowledge, the greater (other things being equal) the weight to be accorded to those opinions.

117. Even if some opinions expressed in an expert's report are regarded as inadmissible rather than as simply not entitled to any weight, there is nothing to be gained by seeking to exclude or excise them. Such an exercise is unnecessary and disproportionate especially when such statements are intertwined with others which reflect genuine expertise and there is no clear dividing line between them. In such circumstances, the proper course is for the whole document to be before the court and for the judge at trial to take account of the report only to the extent that it reflects expertise and to disregard it in so far as it does not. As Thomas LJ trenchantly observed in Secretary of State for Business Enterprise and Regulatory Reform v Aaron [2008] EWCA Civ 1146 at para 39:

"It is my experience that many experts report views on matters on which it is for the court to make its decision and not for an expert to express a view. No modern or sensible management of a case requires putting the parties to the expense of excision; a judge simply ignores that which is inadmissible."

118. I therefore conclude that the whole of the AAIB Report is admissible as evidence in these proceedings, with it being a matter for the trial judge to make such use of the report as he or she thinks fit. Even if I had concluded that the AAIB Report contains some inadmissible material, I would not have thought it sensible to engage in an exercise of editing out parts of the report. Even on that view, the whole report should be before the court, with the judge at trial taking into account what is admissible and ignoring the remainder.’

26. In the judgment of the Appeal Court, Christopher Clarke LJ mirrors this view:

‘52. It is not, however, the function of an expert to express opinions on disputed issues of fact which do not require any expert knowledge to evaluate. However, as the judge observed, it is common to find in many expert's reports opinions of that character, which are not helpful and to which the court would not have regard. As to those he thought it preferable: "…to treat this as a question of weight rather than admissibility, particularly since there is no clear point at which an expert's specialised knowledge and experience ceases to inform and give some added value to the expert's opinions. It is a matter of degree. The more the opinions of the expert are based on special knowledge, the greater (other things being equal) the weight to be accorded to those opinions".

53. Insofar as an expert's report does no more than opine on facts which require no expertise of his to evaluate, it is inadmissible and should be given no weight on that account. But, as the judge also observed, there is nothing to be gained, except in very clear cases, from excluding or excising opinions in this category.

I agree with what he said in para 117 of his judgment:

"Such an exercise is unnecessary and disproportionate especially when such statements are intertwined with others which reflect genuine expertise and there is no clear dividing line between them. In such circumstances, the proper course is for the whole document to be before the court and for the judge at trial to take account of the report only to the extent that it reflects expertise and to disregard it in so far as it does not. As Thomas LJ trenchantly observed in Secretary of State for Business Enterprise and Regulatory Reform v Aaron [2008] EWCA Civ 1146 at para 39: "It is my experience that many experts report views on matters on which it is for the court to make its decision and not for an expert to express a view. No modern or sensible management of a case requires putting the parties to the expense of excision; a judge simply ignores that which is inadmissible.""

54. The judge concluded that the whole of the Report was admissible, it being a matter for the trial judge to make use of the Report as he or she thought fit. Even if he had concluded that it contained some inadmissible material he would not have thought it sensible to engage in an editing exercise. The trial judge should see the whole report and leave out of account any part of it that was inadmissible.’

27. A similar approach was adopted by Carr J. in Moylett v. Geldof and Another [2018] EWHC 893 (Ch) which also involved the admissibility of portions of an expert report.

There, inter alia, objection was taken to the report as having gone “beyond what is permissible for an expert by expressing an opinion on the ultimate question in the proceedings.” Referencing Hoyle v. Rogers (above), the Court stated:

“The ultimate message from that decision is that it is much preferable for the court, rather than picking through expert reports, seeking to excise individual sentences and engaging in an editing exercise, to allow the trial judge to consider the report in its entirety, assuming that it is genuine expert evidence, and to attach such weight as it sees fit at the trial to those passages in the report.”

APPLICATION OF LAW IN THIS INSTANCE

28. Has the heavy burden referenced by Kelly J. above been reached in this case such as justifies the exclusion of the SWR in its entirety or the excision of portions thereof in the context of a pre-trial application? I do not believe that it has in this instance. The Plaintiffs assert that the facts as postulated or assumed in the report put forward a case outside the pleadings, outside the sphere of expertise of the writer and unsupported by evidence being adduced by the First Named Defendant as indicated in the witness statements being proffered (or not proffered) by the First Named Defendant. The First Named Defendant denies this and says only at trial will these matters be fully addressed. It accepts that the facts as postulated or assumed by the expert must be proved and, if not proved, the consequential impact on the expert report is recognised. It contends that the expert may be cross-examined in this context or the facts may be proved. The First Named Defendant argues that the pleadings are broader than the Plaintiffs assert. In the context of considering the application before me and the burden in relation to excision, I am being asked to make a decision on the breadth of the pleadings, the evidence that will be adduced at trial, the facts that will be proved and the impact of such proven facts on expert testimony in a pre-trial context based on Affidavit only where there is clearly significant dispute between the parties on all of these matters. There may well be arguments in relation to exclusion (admissibility) or weight which will have to be addressed at the hearing but in relation to the issues currently being raised:

A. Publicly available information This was not mentioned in the original letter of the 25th October 2024. The complaint of the Plaintiffs (derived from the grounding Affidavit) seems to relate to an absence of identification of such information as was relied upon and also to a failure to refer to relevant publicly available information. It does appear that the form of words referenced in paragraph 1.26 of the SWR is a somewhat pro forma exercise if the First Report is also examined. I must, therefore, agree with the observation of the First Named Defendant in its submissions that first sentence in the paragraph seems inaccurate as there would not appear to have been reliance upon any publicly available information in the SWR. It is impossible and would be entirely inappropriate for me to endeavour to determine on the basis of affidavit evidence only as the whether there is other relevant publicly available information which ought to have been considered by the expert but was not. The Plaintiffs appear to be of the view that there is such. The First Named Defendant disagrees.

This is a matter which will ultimately be an issue to be determined by the trial judge.

B. Absence of required information This does not appear to be referenced in the original letter of complaint or in the Affidavit of Mr. Little. Paragraph 1.27 of the SWR seems somewhat inelegantly phrased However, it would appear to be perfectly appropriate that an expert witness as to accountancy issues would identify gaps in his factual knowledge base which impact upon calculations. He expressly states that he is reserving the right to supplement his analysis and conclusions should additional information become available. I do not find that this results in a legal impediment to the report but rather demonstrates the expert identifying information which he does not have which he believes relevant and which, if received, will be calibrated into his calculations.

C. Factual Sequence of Events The factual sequence of events as set out by the expert is to some extent unfortunate.

In this regard, I note that paragraph 1.36 formed part of such sequence and was entirely beyond the scope of an expert witness. However, it has been excised by agreement. I do have reservations about other aspects of this sequence of events.

The expert would appear to have engaged in factual determinations and assumptions some of which are outside the scope of his expertise. The First Named Defendant acknowledges that the expert must confine himself to matters within his field of expertise, that he is not entitled to give evidence on matters of law and that he must state the facts or assumptions on which the opinion is based. However, the facts and assumptions of the expert must relate to the matters upon which they are formulating their opinion. It does seem to me that in certain instances the factual sequence of events ‘identified’ by the expert go beyond what is relevant and pertinent to the matters upon which he is being requested to opine. However, the case being made by the First Named Defendant cannot be altered by the contents of an expert report. The case being advanced is a matter for pleading. I do not believe that it is appropriate or proper that I, on the basis of affidavit evidence only and in the context of a pre-trial motion, would purport to ‘blue pencil’ or in some way correct the factual sequence of events set out by the expert. I agree with the submission of the First Named Defendant that the primary facts upon which the opinion of an expert is based must be proved by admissible evidence. As submitted by the First Named Defendant herein, such evidence may emerge at trial “… through an agreement in relation to the admissibility of discovered documents; in cross-examination; pursuant to the provisions of the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020; or otherwise.” If there is an hypothesis stated by the expert on assumed facts and such facts are not ultimately proved, this is a matter which will go to admissibility or to the weight to be attached to the opinion based upon them, as the trial judge determines. This is a matter which can only be addressed at the hearing when it is known what facts are proved and what facts are not proved. I agree with the First Named Defendant that I cannot at this stage of the proceedings determine that these facts are incapable of being proven in evidence.

D. It was entirely inappropriate for the expert to comment on the issue of negligence as he did. It was entirely appropriate that the excision of this paragraph was proffered by the First Named Defendant.

E. This would appear to be a replication of Issue C above.

F. Commentary on the legal intentions of the parties This appears to relate to Paragraphs 3.10, 3.11 and 3.12 of the report. I am of the view that in relation to these paragraphs, the expert is setting out his assumptions upon which his opinion is based. He is bound to do so. These assumptions may in due course be proved to be correct or incorrect and this will have consequent impact upon opinions reached on the basis of such assumptions. It will be a matter for the trial judge to determine whether these assumptions have been established by admissible evidence.

G. Sources of funds The First Named Defendant agreed to excise this portion of the report and continue to be so agreeable.

29. I am therefore refusing the reliefs sought by the Plaintiffs in the context of this pre-trial motion. In so doing, I am mindful of the dicta of Collins J. in Duffy v McGee [2022] IECA 254 and the careful guidance set out therein in relation to expert evidence and, in particular, Paragraphs 17 and 18 of that decision. I do so entirely without prejudice to the arguments and applications which may be made in relation to this expert report, its factual assumptions and its consequent conclusions in the context of the full hearing.

The matters arising in this case in relation to aspects of the SWR are matters which will, undoubtedly, arise once again at the hearing and they will have to be determined by the trial judge in that context. However, I do not consider it appropriate to edit the report at this point over and above what has been offered by the First Named Defendant. I conclude that the heavy burden referenced by Kelly J. has not been satisfied. I therefore refuse the relief sought in Paragraph 1 of the Notice of Motion herein.

30. I will list this matter for mention at a date convenient to the parties in order to address any matters arising.