Joan O'Flynn v Health Service Executive and Sonic Healthcare (Ireland) Ltd and Medlab Pathology Ltd and Clinical Pathology Laboratories Incorporated

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 01 April 2022
• Neutral Citation: [2022] IECA 83
• Docket Number: Record Number: 2021/314
• Year: 2022
• Court: Court of Appeal (Ireland)

Between/

Joan O'Flynn

Plaintiff/Respondent

and

Health Service Executive and Sonic Healthcare (Ireland) Limited and Medlab Pathology Limited and Clinical Pathology Laboratories Incorporated

Defendants/Appellants

[2022] IECA 83

Costello J.

Noonan J.

Faherty J.

Record Number: 2021/314

High Court Record Number: 2018/10201P

THE COURT OF APPEAL

Personal injuries – Disclosure – S.I. 391 of 1998 – Appellants seeking disclosure – Whether there were shortcomings in the disclosure regime introduced by S.I. 391 of 1998

Facts: The plaintiff/respondent, Ms O’Flynn, on the 20th October, 2010, underwent a cervical smear test as part of the National Cervical Screening Programme (CervicalCheck). The plaintiff alleged that her sample was negligently analysed and reported as normal, when it was, in fact, abnormal. The plaintiff claimed to have suffered personal injuries as a result. The second, third and fourth defendants/appellants, Sonic Healthcare (Ireland) Limited, Medlab Pathology Limited and Clinical Pathology Laboratories Incorporated (CPL), were all related entities to which the first defendant/appellant, the Health Service Executive, contracted the examination of cervical smear samples. On the 13th September, 2021, CPL issued a motion seeking an order compelling the plaintiff to exchange all reports in her schedule which was returnable to the 19th October, 2021. That motion was heard by the High Court (Cross J) on the 5th November, 2021 following which he delivered an ex tempore judgment. The judge declined to make an order directing disclosure of the plaintiff’s reports based merely on a Harrington undertaking: Harrington v Cork City Council and Anor. [2015] 1 IR 1. He proposed in the alternative that if the defendants were prepared to give an undertaking to the effect that the reports would be disclosed only to CPL’s legal team, but not CPL itself, that he would be prepared to allow the application on those terms. He allowed the parties to take instructions on this proposal but both sides agreed that it was unworkable and accordingly, the application was refused. The defendants’ appeal to the Court of Appeal was concerned with the proper implementation of the disclosure regime introduced in personal injuries litigation by S.I. 391 of 1998.

Held by Noonan J that the authorities demonstrated that where a literal application of the rules has the potential to result in injustice, the court will intervene to ensure the equality of arms that the rules were intended to assure. Noonan J held that the rules themselves could not be permitted to become a source of unfairness. In Noonan J’s judgment, fairness between the parties would best be achieved by adopting the following approach: (i) each party’s disclosure schedule should identify the experts it intends to call to give evidence and their areas of expertise, whether they have written a report or not; (ii) exchange of expert reports should, where possible, occur on a simultaneous basis; (iii) where either party has not yet decided what, if any, experts they intend to call, or has so decided but not yet received a report, exchange of expert reports should be undertaken on a like for like basis as reports become available; (iv) where genuine difficulty arises in identifying what amounts to like for like, resolution would be facilitated by each party indicating in a general way what issue or issues in the case the expert’s evidence is directed toward; (v) where CPL confirms that it does not intend to call an expert to give evidence on a particular issue, the plaintiff should furnish her expert reports on that issue subject, if required, to a Harrington undertaking; (vi) if, having seen any expert report of the plaintiff, CPL decides that, contrary to an earlier indication, it wishes to call an expert in relation to an issue disclosed in the plaintiff’s report(s), it should satisfy the High Court that it is in the interests of justice that it be permitted to do so; (vii) any necessary application in that regard should be made, where possible, on foot of a motion on notice grounded on affidavit; (viii) the stipulations at (v), (vi) and (vii) will apply mutatis mutandis to the plaintiff; (ix) the parties must remain free to withdraw any expert from their schedule as they see fit.

Noonan J dismissed the appeal and as the plaintiff had been entirely successful, his provisional view was that she should be entitled to her costs.

Appeal dismissed.

JUDGMENT of Mr. Justice Noonan delivered on the 1st day of April, 2022

1 This appeal is concerned with the proper implementation of the disclosure regime introduced in personal injuries litigation by S.I. 391 of 1998.

Background

2 The claim of the respondent (“the plaintiff”) is one of many arising out of the operation of the National Cervical Screening Programme, better known as CervicalCheck. On the 20th October, 2010, the plaintiff underwent a cervical smear test as part of this programme. The plaintiff alleges that her sample was negligently analysed and reported as normal, when it was, in fact, abnormal. The plaintiff claims to have suffered personal injuries as a result. The operation of the sampling system is described in more detail in the judgment of this court in these and related proceedings sub nom Wallace v HSE & Ors. [2021] IECA 141.

3 The personal injury summons herein was issued on the 22nd November, 2018. By the time of the commencement of the proceedings, there was one expert report available to the plaintiff's solicitors from Professor John Shepherd, a consultant surgeon and gynaecological oncologist, dated the 5th August, 2018.

4 The plaintiff's solicitors herein are also the legal representatives of a significant number of women bringing similar claims relating to the operation of the CervicalCheck scheme.

5 The second, third and fourth defendants in these proceedings are all related entities to which the first defendant contracted the examination of cervical smear samples. In the course of this appeal, counsel for the plaintiff informed the court that there is, in reality, one participating defendant in this case, namely the fourth defendant, Clinical Pathology Laboratories Incorporated (“CPL”). Counsel for CPL did not disagree with this characterisation.

6 The personal injuries summons contains particulars of negligence in the normal way which are fairly generic. Thus, beyond pleading that the defendants failed to properly interpret and report on the plaintiff's sample, no greater detail is given as to the particular acts or omissions on the part of the defendants, (in reality CPL), that are said to constitute the negligence in this case. I do not overlook the fact that it is also alleged that the defendants were otherwise negligent in failing to disclose to the plaintiff the facts and circumstances surrounding a subsequent review of her smear sample carried out some years later. However, the key allegation for the purposes of this appeal is the misreading of the sample.

7 After a considerable interlude, on the 9th March, 2020, CPL's solicitors served a notice for particulars arising out of the summons. No queries were raised with regard to the particulars of negligence beyond seeking confirmation that those contained in the summons were final, or if not, that final particulars be furnished. No particulars were sought as to the manner in which it was alleged that CPL had misread the sample and the precise acts or omissions that were alleged to have constituted such negligence.

8 In her replies to the notice for particulars, the plaintiff simply reserved the right to amend and serve further particulars. In fact, no further particulars of negligence were at any time delivered by the plaintiff. All subsequent particulars were essentially concerned with updating the particulars of personal injury.

9 On the 22nd January, 2020, the plaintiff's solicitors called upon CPL's solicitors to deliver their defence. On the 30th January, 2020, CPL's solicitors said in response that they had yet to receive the relevant pathology slide from the plaintiff's expert, Dr. McKenna, and further:-

“Our client is not in a position to deliver a Defence until an expert report has been obtained on its behalf following a review of cytology slide ZA376669.”

10 Despite that statement, CPL delivered its defence on the 2nd February, 2021, apparently without the benefit of such expert report, and beyond putting negligence in issue, no particular complaint was advanced that the plaintiff's claim had not been properly pleaded or was inadequately particularised to a sufficient extent to enable CPL to know the case it had to meet. At para. 1 of the defence, CPL pleaded that it awaited receipt of all relevant and necessary documentation and/or medical records from the plaintiff which its experts required sight of before advising on the alleged negligence. As would be usual, this was presumably a reference to discovery of all of the plaintiff's relevant medical records which would clearly be required by CPL's experts prior to preparing a report. There was no suggestion that CPL's experts could not prepare a report until they saw the plaintiff's reports nor could such a proposition be understood from this plea. Indeed, CPL's statement above quoted is inconsistent with such suggestion. At the time it delivered its defence, CPL had been in possession of the relevant slide for about a year, having received it from the plaintiff's solicitors in February 2020.

11 Before the matter was set down for trial, a further issue emerged. CPL said that its experts required to carry out what is known as a blind review of various slides, including those of this plaintiff, in order to properly present its case. In order to carry out such a review, CPL said it was necessary to remove various markings from the original slides. That issue was contested in the High Court and again on appeal...