Supreme Court dismisses appeal requiring full disclosure of expert reports containing evidence substance under S.I. 391/1998.

THE SUPREME COURT

Geoghegan J.

McCracken J.

Kearns J.

Record No. [2001/17942P]

Appeal No. [32/05]

BETWEEN

DAVID PAYNE

PLAINTIFF

AND

PHILIP SHOVLIN, KEN MCDONALD AND MICHAEL HUTCHINSON

DEFENDANTS

JUDGMENT delivered on the 9th day of February, 2006, by Kearns J.

1. This appeal concerns the interpretation of various statutory provisions relating to the disclosure of reports and statements from

expert witnesses intended to be called at trial. The obligations imposed on litigants in this respect are provided for by section 45 of

the Courts and Court Officers Act, 1995 (“the 1995 Act”) and Rules 42 - 51 of Order 39 of the Rules of the Superior Courts as

inserted by Statutory Instrument No. 391 of 1998 “Rules of the Superior Courts (No. 6) (Disclosure of reports and statements),

1998”, (“S.I. 391/1998”)

2. The present proceedings were initiated by a plenary summons dated the 7th December, 2001, wherein the plaintiff claims damages

against the various defendants for alleged negligence in medical treatment afforded to the plaintiff in November 2000, as a result of

which it is alleged the plaintiff suffered an intra-cerebral bleed resulting in severe personal injuries, loss and other damage.

3. The plaintiff delivered a Statement of Claim on the 14th January, 2002, and the Defence of the second and third named defendants

was delivered on the 10th September, 2002. The Defence of the first named defendant was delivered on the 5th November, 2002.

Notice of Trial was served in November, 2002 following which Notice of Discontinuance against the third named defendant was served

in February 2003. The first named defendant represents St. Vincent’s Hospital in Dublin where it is alleged the plaintiff received

negligent medical treatment. The second named defendant is a consultant cardiologist who treated the plaintiff in that capacity while

in St. Vincent’s Hospital.

4. By Notice of Motion dated the 19th April, 2004, the plaintiff applied to the High Court seeking the court’s directions in respect of

the plaintiff’s obligation to disclose the reports of its medical experts intended to be called at trial to give evidence in relation to

issues in the proceedings. The motion seeking directions was one brought pursuant to Rule 47 of S.I. 391/1998, which provides that

where one party alleges that another has failed to comply with the requirement to disclose reports or statements under S.I.

391/1998, an application may be made to the Court seeking directions in relation to any such alleged default.

5. The application was grounded on the affidavit of the plaintiff’s solicitor, Mr. Michael Boylan, who deposed that the plaintiff’s claim

arose out of events which occurred after the plaintiff was admitted to St. Vincent’s Hospital on the 16th November, 2000. The

plaintiff had a prosthetic aorta valve inserted in 1991 and was on long term oral anti-coagulation therapy with Warfarin. On the 16th

November 2000, the plaintiff was admitted with a history of dizziness, high grade pyrexia, headaches and lethargy and a diagnosis

was made of endocarditis associated with staphylococcus aureus septicaemia. On the 28th November, 2000, the plaintiff had inserted

a right internal jugular catheter and on the 29th November, 2000, the plaintiff started to bleed excessively from the site of the

catheter insertion and developed a large localised haematoma which did not respond to local pressure bandaging and continued to

ooze. He also developed severe headache and loss of visual fields. It was further deposed that negligence on the part of the

defendants in failing to consider the effects of high dose Clexane therapy along with the effects of Warfarin precipitated a cerebral

bleed which occurred on the 29th November 2000. The alleged failure to monitor the Clexane therapy allegedly caused or permitted

the plaintiff to continue to bleed inter-cerebrally without detection and without a reversal of the anti-coagulant therapy for a

prolonged period as a result of which he suffered catastrophic injuries.

6. Mr. Boylan was consulted by the plaintiff’s wife in February 2001 at which point the plaintiff was still an in-patient in the National

Rehabilitation Hospital in Dunlaoghaire. Because he was aware that the plaintiff had suffered serious neurological damage, Mr. Boylan

sent such of the plaintiff’s records as were then available to Dr. Peter Harvey, consultant neurologist to the Royal Free Hospital and

of Harley Street in London for the purpose of obtaining his preliminary views on the issue of liability in the proceedings.

7. Dr. Harvey furnished a report on the 1st August, 2001, setting out his preliminary views, but making it clear at the time that the

expert views of a number of other specialists would have to be obtained before he could express any final opinion. Thereafter Mr.

Boylan obtained a report from Professor Sam Machin, a haematologist at University College Hospital in London. Following receipt and

consideration of these reports, it was felt the plaintiff had a good cause of action and papers were forwarded to counsel for the

purpose of drafting a statement of claim and appropriate particulars of negligence and breach of duty.

8. Even though further reports from a range of experts were obtained following the delivery of the Statement of Claim, the particulars

of negligence and breach of duty have not been amended in any way in consequence. In April, 2004, Dr. Harvey provided a further

detailed medical report in respect of which Mr. Boylan states as follows:-

“I believe and have been informed by Dr. Harvey that his views as to liability and causation have evolved and developed since

he furnished his preliminary report as a result of consulting with the other experts in the case. The views as expressed in his

final comprehensive report are more refined and informed than they were at the time of his preliminary report and take

account of information obtained from the other experts, views expressed by them which were not available to him originally,

together with the clinical history obtained from Mrs. Payne. Furthermore, the drug administration chart from the hospital

which had been lost, has now been reconstructed by the hospital from pharmacy records and this had also been helpful to Dr.

Harvey.”

9. Mr. Boylan then sought the directions of the court to ascertain whether or not he, as legal advisor to the plaintiff, was now obliged

to disclose to the defendants Dr. Harvey’s preliminary report of 2001 in circumstances where it was being contended that Dr. Harvey’s

report of April, 2004, would form the basis of his direct evidence to be given at trial.

10. In the course of his affidavit, Mr. Boylan also deposed that Dr. Harvey would comment on the defendant’s expert reports at a

later stage for the assistance of counsel in the cross-examination of the defendants’ medical experts. In those particular

circumstances, Mr. Boylan sought further guidance from the court as to whether or not he was obliged under the definition of

“reports” as outlined in S.I. 391 to also disclose Dr. Harvey’s written observations on the defendants’ case.

11. In conclusion, Mr. Boylan contended and stated that he had been advised by counsel that only Dr. Harvey’s final report containing

the substance of the evidence intended to be adduced by him required to be disclosed to the defendants. That, it was argued, was

sufficient to ensure that the interests of justice were protected, balancing on one side the plaintiff’s right to legal professional

privilege and on the other those interests of justice which require the avoidance of trial by ambush or surprise.

12. The matter was heard before Dunne J. in November 2004, who delivered a written judgment on the 17th December 2004. In her

judgment, the learned trial judge held that the plaintiff was obliged to disclose both the preliminary report of Dr. Peter Harvey,

together with his final report dated the 13th April, 2004, pursuant to Order 39, Rule 46 of the Rules of the Superior Courts as set out

in S.I. 391/1998.

13. By Notice of Appeal dated the 20th January, 2005, the plaintiff appealed to this court from the said judgment on the following

grounds:-

(a) The learned trial judge erred in law and in fact in finding that the report of Dr. Harvey of the 1st August 2001, being a

preliminary report and stated as such, contained the substance of the evidence to be adduced in relation to an issue in the

action and therefore should be disclosed under the provisions of the Rules of the Superior Courts (No. 6) (Disclosure of Reports

and Statements) S.I. 391 of 1998.

(b) The learned trial judge erred in law and in fact in finding that as the plaintiff would not suffer any prejudice as a result of

being required to produce the said report, therefore the interests of justice would not be served by acceding to the plaintiff’s

application.

(c) The learned trial judge erred in fact and in law in deciding that the effect that the definition of the word “report” contained

in Order 39 Rule 45(1)(e) included preliminary reports drawn up for the purposes of assisting legal advisors in instituting and

preparing the proceedings for trial.

The Relevant Statutory Provisions

14. It is common case between the parties that documents prepared for the purpose of pending or contemplated civil proceedings (or

in connection with the obtaining or giving of legal advice) are privileged from disclosure.

15. However, an exception to that rule was created by s.45 of the Court and Court Officers Act, 1995, which, in its relevant parts,

provides as follows:-

“(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;

(3) References in this section to an expert report or to a report of statements from an expert are references to evidence in

whatever form or a written report by a person dealing wholly or mainly with matters on which that person is qualified to give

expert evidence.

(4) Notwithstanding the rule of law against the admission of hearsay evidence and the privilege attached to documents

prepared for the purpose of pending or contemplated civil proceedings the Superior Courts Rules Committee or the Circuit

Court Rules Committee may, with the concurrence of the Minister, make rules allowing for the admission in evidence in

personal injuries actions in the High Court or the Circuit Court of information, documentation, reports or statements disclosed

pursuant to subsection (1) of this section, subject to such conditions and procedures as may be necessary to protect the

interests of the parties.”

16. Before coming to consider the provisions of S.I. 391/1998, it is important to record that the first set of rules introduced to govern

this statutory exception were those contained in the Rules of the Superior Courts (No.7) 1997, S.I. 348 of 1997. In that Statutory

Instrument, Rule 45(1) (e) included the following definition of reports:-

“Reports includes reports (including reports in the form of a letter), statements from accountants, actuaries, architects,

dentists, doctors, engineers, occupational therapists, psychologists, psychiatrists, scientists or any other expert whatsoever

intended to be called to give evidence in relation to an issue in an action and shall also include any maps, drawings,

photographs, graphs, charts, calculations or other like matter referred to in any such report.”

17. Those rules were revoked in 1998 and replaced by those contained in Rules of the Superior Courts (No. 6) (Disclosure of Reports

and Statements) (S.I. no.391 of 1998). Mr. McCullough, senior counsel on behalf of the plaintiff, in response to a query from the

Court as to why the 1997 rules were replaced by those of 1998, stated (without demur from defendants’ counsel) that the obligation

created by the definition of ‘reports’ in S.I. 348/1997 was proving excessively onerous and was creating practical problems for legal

practitioners.

18. S.I. 391/1998 redefined “report” by including as part of the definition that it be “in relation to an issue in the action and

containing the substance of the evidence to be adduced…”. (emphasis added)

19. Rule 46(1) of S.I. 391/1998 then provided:-

“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.”

20. Rule 46 (6) provides:-

“Any party who has previously delivered any report or statement or details of a witness may withdraw reliance on 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.”

21. Rules 47 and 50 then provide that directions of the court may be sought in relation to any alleged default in compliance with the

requirements of Rule 46. Rule 50 in particular provides an opportunity to a party to seek an order from the court that in the interests

of justice the provisions of Rule 46 shall not apply in relation to any particular report or statement which is in the possession of such

party and which he maintains should not be disclosed.

Submissions of the Parties

22. On behalf of the plaintiff, Mr. McCullough submitted that the phrase “reports containing the substance of the evidence to be

adduced” should be understood as meaning that the obligation of disclosure should be confined to the report or reports which contain

the intended evidence- in- chief of the expert witness in question. He submitted that that was the obvious implication and inference

to be drawn from the repeal of the more extensive obligation contained in the 1997 Rules. He contended there was a basic unfairness

in requiring a plaintiff to furnish a preliminary report prepared at a time when investigations into negligence or causation in a complex

medical negligence case were only getting under way.

23. He further submitted that once the defendant had sight of the report which contained the substance of the evidence which it

was intended to lead, there could be no claim or suggestion of trial by ambush, or any suggestion that the defendant could be taken

by surprise by the evidence in question.

24. In this contention, Mr. McCullough argued that he was supported by two decisions of this court. In Galvin v Murray and the

County Council of Cork [2001] 1 I.R. 331 Murphy J., with whose judgment McGuinness J and Geoghegan J concurred, stated (at

336):-

“Clearly, the disclosure rules are designed to forewarn other parties of expert evidence with which they may be confronted.

The rules have no role to play in investigating strengths or weaknesses of an opponent’s case.”

25. Mr. McCullough argued that the defendants were seeking precisely such an advantage by obtaining sight of a mere preliminary

report.

26. In Kincaid v Aer Lingus Teoranta (Unreported, Supreme Court, judgment of Geoghegan J., 9th May 2003 with which McGuinness J

and McCracken J concurred) the same underlying purpose of the rules was reconfirmed when Geoghegan J. stated (at p.6):-

“The purpose of the rules is not to disclose the strength and weaknesses of each others 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”.

27. Ms. Irvine, senior counsel for the first defendant, contended that it was a fallacy to consider that the bringing into being of a

second report which subsumed a previous report which contained the substance, or some of the substance, of the evidence intended

to be given at trial meant that the first report need not be furnished.

28. Rule 46(1) was quite specific in stating that “all” reports of expert witnesses must be listed in the schedule to be furnished.

Nothing in the 1998 definition of “report” suggested that it was intended by the Rules Committee to convert or confine the obligation

to disclose to something in the nature of a “will say” obligation which in effect was what Mr. McCullough was contending for. Had that

been intended, it would have been open to the Rules Committee to introduce a rule similar to that contained at Rule 22(1) of the

Rules of the Superior Courts (Commercial Proceedings), 2004, S.I. No.2 of 2004 which provides:-

“Unless a judge should otherwise order, a party intending to rely upon the oral evidence of a witnesses to fact or of an expert

at trial shall, not later than one month prior to the date of such trial in the case of the plaintiff, applicant or other party

prosecuting the proceedings and not later than 7 days prior to that date in the case of the defendant, respondent or other

party defending the proceedings, serve upon the other party or parties a written statement outlining the essential elements of

that evidence signed and dated by the witness or expert, as the case may be.”

29. Ms. Irvine noted the quite different position which had pertained in England until 1999 with regard to disclosure of expert evidence

in personal injury actions where RSC Order 25, Rule 8(1) had provided:-

“When the pleadings in any action to which this rule applies are deemed to be closed the following directions shall take effect

automatically:-

(b) subject to para.(2) where any party intends to place reliance at the trial on -

(i) expert evidence, he shall, within 14 weeks, disclose the substance of that evidence to the other parties in the form of

a written report, which shall be agreed if possible;

and

(ii) any other oral evidence, he shall, within 14 weeks, serve on the other parties written statements of all such oral

evidence which he intends to adduce.”

30. These Rules (which did not in any event apply to medical negligence cases) were replaced by the Civil Procedure Rules which

were introduced in England in April, 1999 in the aftermath of the final Woolf Report furnished in 1996. Their only importance lies in the

fact that the Rules Committee in drafting S.I. 391/1998 seem to have taken the phrase ‘substance of the evidence to be adduced’

from RSC. O. 25.

31. Ms. Irvine suggested that O. 25 provided for a form of “will say” procedure in England at that time whereby the substance of the

evidence to be given by the expert was required to be put into a single report. S.I. 391/1998 was however effectively the other way

around, requiring that all reports in which any substance of the evidence to be given appears must be disclosed save in a case where

the court otherwise directs by order made on motion under Rule 50 of S.I. 391.

32. Ms. Irvine further submitted that it would be absurd in the instant case not to direct disclosure of the 2001 report upon which the

Statement of Claim with its multiple allegations of negligence had been based, particularly in circumstances where the particulars of

negligence had never since been amended, notwithstanding the production of a further report in 2004 by the same witness. It was

also submitted that the learned trial judge had the benefit of reading both reports and her conclusion that the plaintiff would suffer no

prejudice of any sort by being directed to furnish the preliminary report should not be lightly set aside.

33. Mr. Brian McGovern, Senior Counsel for the second named defendant, supported the submissions made on behalf of the first

named defendant. He contended that the onus of proof to exclude a report from the ambit of the obligation to disclose rested on the

party seeking relief under Order 50(1). While the present application had been brought as a motion for directions under Rule 47, it was

in reality an attempt to obtain relief under Rule 50.

34. He further submitted that the facts of the Galvin and Kincaid cases were clearly distinguishable from those of the instant case

where the witness whose reports were in issue was always going to be giving evidence in any event. No issue had arisen in either of

the cases mentioned as to whether an early or preliminary report of a witness intended to be called enjoyed immunity from disclosure

because the witness thereafter furnished a final report upon which it was proposed to exclusively rely.

35. He further submitted that if any injustice attached to litigants under the 1997 Rules, then it should not be replaced by a different

form of injustice under the 1998 Rules. It was quite unsatisfactory that a defendant would simply be presented with a virtual “will

say” version of the proposed evidence to be given by the expert witness. It left the door open to “witness prepping” and the

possibility that earlier reports might be “sanitised” as time progressed. If that were to occur - and Mr. McGovern strongly emphasised

there was no suggestion of any such behaviour in the instant case - a defendant could never know how or in what circumstances

that had happened. Furthermore, the possibility that the expert had earlier held a different view might only emerge in cross-

examination in circumstances which might effectively demand an adjournment of any hearing because of the unforeseen nature of

such a disclosure emerging only at that stage. On a true reading of the two Irish cases relied upon by Mr. McCullough, this was the

very mischief which the rules were designed to prevent and avoid. Far from damaging the credibility of an expert witness, the fact

that his views, to borrow Mr. Boylan’s phrase, had “evolved and become more refined” as time progressed, could only be seen as

underwriting the authority of the expert in question. There could be no question therefore of any prejudice to a plaintiff in being

obliged to furnish reports other than a final sanitised version.

Decision

36. The last 20 years have ushered in widespread procedural changes in litigation designed to expedite and streamline legal

proceedings. Coupled with these advances is the recognition that the cost of certain forms of litigation, including medical negligence,

is now so high that smaller claims can rarely be litigated because of the disproportionate cost involved. This was a problem recognised

in Britain by Lord Woolf in his Final Report “Access to Justice” which was published in July, 1996, and which ushered in many

significant procedural reforms in that jurisdiction. On the topic of medical negligence cases and the difficulties associated with such

litigation, he stated (Chapter 15, para.5):-

“The difficultly of proving both causation and negligence, which arises more acutely in medical negligence than in other

personal injury cases, accounts for much of the excessive cost. The root of the problem, however, lies less in the complexity

of the law or procedure than in the climate of mutual suspicion and defensiveness which is still all too prevalent in this area of

litigation. Patients feel let down when treatment goes wrong, sometimes because of unrealistic expectations as to what could

be achieved. Doctors feel they are under attack from aggrieved patients and react defensively. The patients disappointment is

then heightened by what they perceive to be a refusal to acknowledge fault and an attempt to cover up.”

37. His Final Report led to the introduction of new Civil Procedure Rules in 1999. Insofar as experts are concerned, the basic premise

of these new English rules is that the expert’s function is to help the court, not to advance the case of the side by whom he or she is

paid. Lord Woolf was particularly anxious that expert witnesses should not be “partisan advocates” but rather “mutual fact finders or

opinion givers” (Chapter 13, para 5). The new Civil Procedure Rules provide for joint appointment of experts by both sides, or the

appointment of a single expert by the court, standardised clinical reports (which set out other relevant recognised opinion in addition

to the author’s), and which further provide that expert evidence will only be received by the court if it is reasonably required to

resolve the issues before the court. The system remains adversarial, however, and both sides to a medical negligence action may still

use their own experts.

38. Some considerable progress has been made to improve procedures in certain types of civil litigation in Ireland also. Major changes

have been introduced, for example, in the area of commercial law and competition law, notably by the Rules of the Superior Courts

(Commercial Proceedings), 2004 (S.I. No. 2 of 2004) and by the Rules of the Superior Courts (Competition Proceedings), 2005 (S.I.

No. 130 of 2005). The latter specifically provide, for example, that the court may retain its own expert. Otherwise the difficulties

adverted to by Lord Woolf remain largely unaddressed in this jurisdiction. There is no separate division of the High Court for medical

negligence cases nor any effective case management system whereby procedures can be simplified and costs kept to a minimum. S.I.

391/1998 may be seen as an attempt to address some of the difficulties in this area.

39. While no direct evidence was offered to this court to explain why the Rules Committee elected to replace the 1997 Rules with a

new definition of “report” in S.I. 391/1998 I have no difficulty in accepting what the court was told in that regard by plaintiff’s

counsel, namely, that the requirements and obligations created by the 1997 Rules posed huge practical difficulties for practitioners

because of the scope of what was required to be disclosed. I would also accept Mr. McCullough’s submission that the altered wording

of the 1998 Rules which redefines a “report” as a document “containing the substance of the evidence to be adduced” should be

seen as easing the obligations which existed under the previous regulations.

40. As all parties to the appeal seem to accept that the Rules Committee adopted this amending phrase from RSC O.25 to which

reference has already been made, it may be appropriate therefore in the first instance to consider how this phrase has been

interpreted in Britain.

Position in England and Wales

41. The Civil Procedure Rules 1998 in England have replaced many of the provisions of the old Rules of the Supreme Court (RSC) and

County Court rules, including O. 25 of the RSC which related to expert evidence. However some case decisions exist which throw

some light on the meaning of the expression “substance of the evidence” which had been contained in O. 25 of the RSC.

42. In Kenning v Eve Construction Ltd [1989] 1 W.L.R. 1189 Michael Wright QC (sitting as a deputy High Court judge) held that a

defendant had a duty under RSC Order 25, R.8(1)(b) to disclose the substance of an expert’s evidence to be given at trial, and that

that disclosure included not only evidence to be given in examination in chief but matters that could arise in cross-examination. He

held accordingly that the defendants would have the choice of either not calling the expert to give evidence at the trial and retaining

the privilege attaching to a particular letter, or of calling the expert and disclosing the substance of the letter. At p.1195 he stated:-

“As I say, it seems to me that the solicitor’s choice is simple. He must make up his mind whether he wishes to rely upon that

expert, having balanced the good parts of the report against the bad parts. If he decides that on balance the expert is worth

calling, then he must call him on the basis of all the evidence that he can give, not merely the evidence that he can give

under examination- in- chief, taking the good with the bad together. If, on the other hand, the view that the solicitor forms is

that it is too dangerous to call that expert, and he does not wish to disclose that part of his report, then the proper course is

that that expert cannot be called at all.

For those reasons, although, as I have said, it is plain that this document, the covering letter, has never lost its character as

a privileged document, it is, in my view, a document which the defendants would have had to disclose under Order 25 Rule 8

and in respect of which they would have had to waive that privilege once they made up their mind that they wished to call

before me the expert who is the author of that report.”

43. At an earlier point (also at 1195), Mr. Wright had stated:-

“It seems to me that the solicitor who instructs him (i.e. the expert) only complies with the requirement of Order 25, Rule

8(1)(b) if the whole of that experts opinion is disclosed, because only if the whole of the opinion is disclosed has the substance

of his evidence been communicated to the other parties.”

44. However the Court of Appeal took a different view in Derby & Co. Ltd & ors v Weldon & ors (No. 9) (The Times, 9th November,

1990) where it held that the phrase “the substance of the evidence” as it appeared in the relevant English rule was a reference only

to evidence it was intended the expert would give at the trial, and not to all the evidence he could give. In as much as Kenning v Eve

Construction Ltd [1989] 1 W.L.R. 1189 was contrary to the court’s conclusion, it was held to have been wrongly decided.

45. Particular reliance was placed by Mr. McCullough upon a decision of the Court of Appeal in Jackson v Marley Davenport Ltd [2004]

EWCA/Civ,1225 (9 September, 2004) where the appeal raised the question whether, if an expert makes an early report to his client

before he makes the report which is later disclosed in the litigation as being the evidence he intends to give at trial, the law requires

that earlier report to be disclosed. The relevant law at this point in time was CPR Rule 35.10(3) which provides:-

“The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the

report was written.”

46. Because of the similarity of facts in that case to those of the instant case, I think it is worth quoting the following fairly lengthy

passage from the judgment of Longmore L.J., in which he stated:-

“There can be no doubt that, if an expert makes a report for the purpose of a party's legal advisers being able to give legal

advice to their client, or for discussion in a conference of a party's legal advisers, such a report is the subject matter of

litigation privilege at the time it is made. It has come into existence for the purposes of litigation. It is common for drafts of

expert reports to be circulated among a party's advisers before a final report is prepared for exchange with the other side.

Such initial reports are privileged.

I cannot believe that the Civil Procedure Rules were intended to override that privilege. CPR 35.5 provides that expert evidence

is to be given in a report unless the court directs otherwise. CPR 35.10 then changed the previous law by providing in sub-rule

(3) that the expert's report must state the substance of all material (whether written or oral instructions) on the basis on

which the report was written. By sub-rule (4) it is, moreover, expressly provided that these instructions shall not be

privileged. But the reference in Rule 35.10 to "the expert's report” is, and must be, a reference to the expert's intended

evidence, not to earlier and privileged drafts of what may or may not in due course become the expert's evidence.

The specific and limited exemption from privilege of the instructions given to the expert as the basis on which the report is to

be written, shows, to my mind, that there cannot have been any intention in the minds of the draftsmen of the Civil

Procedure Rules to abrogate the privilege attaching in other respects, e.g. to earlier drafts of a final report or to earlier

reports whether said, in terms, to be draft reports or not.

The report intended to be used at trial is Professor Rutty's report of the 18th June, 2004. It is not on its face a partial or

incomplete document. If it were, the position might be different, but it would in my view be a retrogression and not an

advance in our law if earlier reports of experts, upon which they did not intend to rely, had to be routinely disclosed before

they could give evidence. For the reasons given, I do not believe that is the law.”

47. In essence, therefore, the courts in England have taken the view that, based on the wording of the CPR , the only report required

to be disclosed is that upon which reliance is to be placed at the trial.

48. In the same case, Lord Justice Gibson stated:-

“It could have been provided in the Civil Procedure Rules that the privilege attaching to documents coming into being with a

view to litigation should not apply to any document prepared by an expert with a view to producing a report. But that is not

the way Part 35 is drafted. On the contrary, Part 35 makes clear how limited is the waiver of privilege when the expert report

is put forward by a party with a view to reliance on it. The order providing for an expert's report does not itself waive privilege

in any document. That only occurs once the party decides that the particular report on which he wishes to rely should be

disclosed.”

49. However, Mr. McCullough very fairly accepts that the wording of the relevant Irish rule is so altogether different from that

contained in the English Rules that the above citations are of limited assistance only and mainly because they highlight the difficulties

which arise at a practical level where issues of disclosure are concerned.

50. It seems to me that once a report is prepared which contains any part of the substance of the evidence to be adduced, the

report must be disclosed in full pursuant to S.I. 391/1998, even if that report is subsumed in a more comprehensive later report.

Considerable reliance was placed by Ms. Irvine on the specific wording set out in Rule 46(1) of Order 39 of S.I. 391/1998 which

provides that:-

“The plaintiff in an action shall furnish to the other party a schedule listing all reports from expert witnesses intended to be

called within one month of the service of Notice of Trial…” (emphasis added)

51. She contended that the use of the plural “all” clearly contemplates a situation where earlier reports must be furnished and advised

the Court that S.I. 391/1998 is currently interpreted by practitioners on that basis. Had the Rules Committee intended the

construction contended for by Mr. McCullough, Ms. Irvine suggested that the relevant rule would have read something along the

following lines:-

“The plaintiff in an action shall furnish to the other party a schedule listing a report from any expert witness intended to be

called”.

52. I am not sure that this altogether meets the interpretation difficulties in this case, because “the substance of the evidence to be

given” could be spread over a number of reports. For example, the same medical expert could deal with the issue of causation in one

report and then deal with negligence in a later report. There would then be two reports, but that would not address the issue which is

central to the present case, namely, whether a preliminary report, other than the kind of reports just mentioned, should also be

furnished.

53. While it is correct to say that S.I. 391/1998 introduced an exception to the general privilege attaching to communications made in

contemplation or in furtherance of litigation, it should be remembered that litigation privilege is itself an exception to the general

principle that all relevant information should be before the court. The consequent need to construe this latter exception strictly has

been recognised frequently by the courts. Thus in Smurfit Paribas Bank v AAB Export Finance [1990] 1 I.R. 469, Finlay CJ stated:-

“The existence of a privilege or exemption from disclosure for communications made between a person and his lawyer clearly

constitutes a potential restriction and diminution of the full disclosure both prior to and during the course of legal proceedings

which in the interests of the common good is desirable for the purpose of ascertaining the truth and rendering justice. Such

privilege should, therefore, in my view, only be granted by the courts in instances which have been identified as securing an

objective which in the public interest in the proper conduct of the administration of justice can be said to outweigh the

disadvantage arising from the restriction of disclosure of all the facts.

It is necessary to bear these general considerations in mind in attempting to ascertain the underlying principle which appears

to have led to the expansion of the privilege for communications with a lawyer from cases of actual or contemplated litigation

to cases of communications seeking legal advice and/or legal assistance other than advice.”

54. Further, in Gallagher v Stanley [1998] 2 I.R. 267, O’Flaherty J said:-

“The recognition of legal professional privilege goes back many centuries. The privilege attaches to confidential

communications passing between lawyer and client for the purpose of obtaining legal advice or assistance and also where

litigation is contemplated or pending…its purpose is to aid the administration of justice, not to impede it. In general, justice will

be best served where there is the greatest candour and where all relevant documentary evidence is available.”

55. Thus the exception to the privilege rule introduced by the 1998 Rules may be seen in itself as an exception to an exception and

one which has as its purpose the furtherance of the principle that justice is best served where “all relevant documentary evidence is

available.”

56. That approach is underlined by the provisions of the Courts and Courts Officers Act, 1995which empowered the Rules Committee

to make the 1998 Rules limiting the ordinary rights of privilege. Section 45(1)(a)(i) of the 1995 Act provides that:-

“notwithstanding any enactment or rule of law by virtue of which documents… are in certain circumstances privileged from

disclosure, the Superior Court Rules Committee… may make rules requiring any party to disclose… 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”.

57. This provision represents a very significant inroad into the professional privilege rule, sufficient on the face of it to cover any

report from a medical expert intended to be called to give evidence at trial.

58. Section 45 (3) further provides that:-

“ references in the section to an expert report are references to evidence in whatever form or a written report by a person

dealing wholly or mainly with matters on which that person is qualified to give expert evidence.”

59. Again, this provision may be seen as providing for a generous, rather than narrow, exception to the privilege rule.

60. I have great difficulty in understanding the reluctance on the part of the plaintiff’s advisors to make Dr. Harvey’s first report

available, containing as it did his views on the information available to him at a particular point in time. Like the High Court judge, I

have availed of the opportunity of reading both reports and am quite satisfied that the learned trial judge was quite correct in holding

that no prejudice can be seen to have been suffered by the plaintiff by directing that the first report be disclosed. However, prejudice

is not the real test in this context. It would only be relevant to an application under Rule 50 (1) which is not before the Court. The

relevant test, it seems to me, is whether or not the “substance” of the evidence to be given, or part of it, is contained in the first

report even if views in that first report are later altered or modified or given subject to qualification in such first report. Without going

into the detail of the report, it manifestly contains such evidence, although it also contains caveats and expresses some concerns

which were addressed to a greater or lesser degree by the time Dr. Harvey furnished his later report in 2004. It is interesting to note

that the declaration made by Dr Harvey in his first report expressly recognises that his first report “will form the evidence to be

given” at trial.

61. It does not seem to me that the two Supreme Court decisions relied upon by Mr. McCullough provide any real assistance for the

contentions which he has advanced. In Galvin v Murray & The County Council of Cork [2001] 1 I.R. 331, the main controversy

concerned whether engineers in the employment of the second defendant should be regarded as “experts” within the meaning of

Order 39, Rule 46. On the making of an application to court for an Order pursuant to Rule 50(1) of S.I. 391, it was explained that the

two engineers who had furnished reports were permanent employees and had furnished reports not as experts, but as employees of

the defendant.

62. In holding that such a person was an “expert” within the meaning of the Rules Murphy J. adopted the decision in Shell Pensions

Trust Ltd. v Pell Frischmann [1986] 2 All ER 911 where it was pointed out that the United Kingdom Rules (like the Irish Rules) referred

to “expert evidence” and not to “evidence given by independent experts”. Murphy J. noted that the court in that case then expressly

held that the relevant rules “apply generally... to independent experts, to so called ‘in-house’ experts and to parties themselves”.

63. It may readily be seen therefore that altogether different issues fell for consideration in that case. The only importance of the

case is the observation by Murphy J. (at 336) to the following effect:-

“Clearly, the disclosure rules are designed to forewarn other parties of expert evidence with which they may be confronted.

The rules have no role to play in investigating the strengths or weaknesses of an opponent’s case.”

64. No one could cavil at or disagree with this proposition and it is common case between the parties before this court that the

mischief of ambush and/or surprise is something to be avoided. However, the failure to produce an earlier report which contains a

view different from that contained in the final report may produce exactly the kind of surprises about which Murphy, J. and

Geoghegan, J. warned. I think Mr. McGovern’s point is well made, namely, that the failure to produce an earlier report, providing it

contains the substance, or part of the substance, of the evidence which, at the time of its compilation it was intended to give, may

lead to a situation where in the course of cross-examination, it may emerge that the author expressed a different view, for example in

relation to causation in a medical negligence action, at an earlier time and adverted to same in a first report. How can the interests of

expedition and efficiency be served if such information only emerges in cross-examination? It might well require that the trial be

adjourned while further lines of enquiry are pursued in the light of the particular revelation. Further, it would always be possible that

such additional inquiries might lead to the claim being dropped altogether. All of these costly and undesirable consequences are

avoided by disclosure of all reports which contain any of the substance of the evidence intended to be led.

65. Still less, in my view, does the decision of this Court in Kincaid v Aer Lingus Teoranta cited above have anything of particular

relevance to say to the facts of this case. That was a case where the defence had listed in its schedule of witnesses and reports a

medical report of Mr. Niall Mulvihill, an orthopaedic surgeon. While the plaintiff furnished copies of all her listed reports, the defendant

omitted the report of Mr. Mulvihill explaining by letter that a decision had been taken that Mr. Mulvihill would not now be called as a

witness, and that being so, there was no longer any obligation to furnish a copy of his report. In effect, therefore, the particular case

turned on the interpretation of Rule 46(6). In the particular circumstances of that case, Geoghegan J. concluded that once the

defendant 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.

66. From this brief recitation of the facts of the latter case, it is clear that Geoghegan J. was also addressing a quite different

problem to the one which arises in the instant case. Mr. McCullough has not argued otherwise, but simply draws the Court’s attention

to one sentence at p.6 of the judgment where Geoghegan J. states:-

“The purpose of the rules is not to disclose the strengths and weaknesses of each others 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.”

67. I have already set out my views as to why this undoubtedly correct statement of the purpose of the Rules does not necessarily

lead to a ‘will say’ form of disclosure by means of a final statement, but rather the opposite: that it demands such production or

disclosure of reports that will ensure that surprises do not occur, either in the course of examination-in-chief or in cross-examination

of an expert witness

68. It is interesting to note that in Kenning v Eve Construction [1989] 1 WLR 1189 it was held that the obligation to disclose the

substance of an expert’s evidence included matters which might arise not only in evidence in chief, but also matters which might arise

in cross-examination. While, as already noted, that decision was subsequently disapproved by the Court of Appeal in Derby & Co. v

Weldon (No.9)(The Times, November 9, 1990), it does seem to me to be an arguable point, although not apparently the subject of

any legal authority in this country. Certainly when personal injury actions were tried in this jurisdiction by judge and jury, judges were

always careful to instruct a jury that in considering the evidence adduced by an expert witness the jury should have regard not

merely to his direct evidence but also to his evidence and answers given in cross-examination also. However it is not necessary for

the purposes of this ruling to offer a view on that issue and I expressly resile from so doing.

69. Equally, no appeal has been brought from the ruling of the learned High Court judge that commentaries by experts on opponents

reports should be disclosed and therefore I am precluded from expressing any view on that issue.

70. I would dismiss the appeal because for the reasons given I would interpret the rule as requiring production of all reports of an

expert intended to be called as a witness which contain in whole or in part the substance of the evidence to be given.