Galvin v Murray

• Jurisdiction: Ireland
• Judge: Mr Justice Francis D Murphy
• Judgment Date: 21 December 2000
• Neutral Citation: [2000] IESC 78
• Docket Number: 102/00,[S.C. No. 102 of 2000]
• Court: Supreme Court
• Date: 21 December 2000

GALVIN v. MURRAY & CORK CO COUNCIL

Between:

John Galvin

Plaintiff/Appellant

AND

John Murray, The County Council of the County ofCork

Defendant/Respondents

AND

Mary Buttimer

Third Party

[2000] IESC 78

Murphy J

McGuinness J

Geoghegan J

102/00

THE SUPREME COURT

Synopsis:

Evidence

Evidence; disclosure; personal injury; reports of expert witnesses; appellant seeks disclosure of technical report drafted by engineer employed by second named respondent which it is proposed to rely on in evidence; whether fact that a witness is employed by one of the parties to a personal injury action deprives him/her of the status of an "expert" for the purposes of the relevant disclosure rules; whether report compiled by such "experts" are privileged; Order 39 Rules 45 and 46 of the Rules of the Superior Courts (as inserted by SI No. 391 of 1998), made pursuant to s. 45 of the Courts and Court Officers Act, 1995.

Held: Appeal allowed; leave granted to respondent to apply to have certain portions of the reports deleted before disclosure, in the interests of justice.

Galvin v. Murray - Supreme Court: Murphy J., McGuinness J., Geoghegan J. - 21/12/2000 - [2001] 1 IR 331 - [2001] 2 ILRM 234

The application concerned the applicability of the rules relating to disclosure of reports complied by in-house experts. The High Court (Johnson J) had deemed that an engineer in the employment of a local authority who compiled a report for his employer could not be considered an expert. The matter was then referred to the Supreme Court. Murphy J, delivering judgment, held that engineers were undoubtedly "experts" and the fact they were employed by one of the parties did not deprive them of this status. However the requirement of disclosure only arose if the employer intended on calling the authors of the reports to give evidence. The disclosure rules represented a radical change in the processing of personal injury claims. The order of the High Court would be reversed but the matter would be remitted to the High Court to allow the respondents the opportunity of arguing that certain parts of the reports of the engineers should be deleted before being disclosed to the plaintiff pursuant to Order 39, rule 50 of the Rules of the Superior Courts.

Citations:

RULES OF SUPERIOR COURTS (RSC)(NO 6) (DISCLOSURE OF REPORTS & STATEMENTS) 1998 SI 391/1998 O.39 r45

RULES OF SUPERIOR COURTS (RSC)(NO 6) (DISCLOSURE OF REPORTS & STATEMENTS) 1998 SI 391/1998 O.39 r46

COURTS & COURT OFFICERS ACT 1995 S45

RULES OF SUPERIOR COURTS (RSC)(NO 6) (DISCLOSURE OF REPORTS & STATEMENTS) 1998 SI 391/1998 O.39 r45(e)

RULES OF SUPERIOR COURTS (RSC)(NO 6) (DISCLOSURE OF REPORTS & STATEMENTS) 1998 SI 391/1998 O.39 r46(1)

RULES OF SUPERIOR COURTS (RSC)(NO 6) (DISCLOSURE OF REPORTS & STATEMENTS) 1998 SI 391/1998 O.39 r50(1)

SHELL & PENSIONS V FRISCHMANN 1986 2 AER 911

RULES OF SUPERIOR COURTS (RSC)(NO 6) (DISCLOSURE OF REPORTS & STATEMENTS) 1998 SI 391/1998 O.39 r50

1 Mr Justice Francis D MurphyDelivered the 21st day of December, 2000[Nemdiss]

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

"45(1) Notwithstanding any enactment or rule of law by virtue of which documents prepared for the purpose of pending or contemplated civil proceedings (or in connection with the obtaining or giving of legal advice) are in certain circumstances privileged from disclosure, the Superior Courts Rules Committee, or the Circuit Court Rules Committee, as the case may be, may, with the concurrence of the Minister, make rules:-"

(a) requiring any party to a High Court or Circuit Court personal injuries action, to disclose to the other party or parties, without the necessity of any application to court by either party to allow such disclosure, by such time or date as may be specified in the rules, the following information, namely:-

(i) any report or statement from any expert intended to be called to give evidence of medical or para-medical opinion in relation to an issue in the case;

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

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

(iv) a full statement of all items of special damage together with appropriate vouchers, or statements from witnesses by whose evidence such loss would be proved in the action;

(v) a written statement from the Department of Social Welfare showing all payments made to a plaintiff subsequent to an accident or an authorisation from the plaintiff to the defendant to apply for such information; and

(vi) such other information or documentation (as may be provided for by Rules of Court) so as to facilitate the trial of such personal injuries actions;

3 (b) Providing for the imposition by the High Court, or the Circuit Court as the case may be, of a sanction for non-compliance of the requirement under paragraph (a) of this subsection including termination of an action, prohibition on a party from adducing such evidence as has not been disclosed without leave of the court, and penalties as to award of costs.

4 (2) Rules of court made for the purposes of this section may make different provisions for different classes of cases.

5 (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...