Kincaid v Aer Lingus Teo

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 09 May 2003
• Neutral Citation: [2003] IESC 31
• Docket Number: [S.C. No. 106 of 2003]
• Court: Supreme Court
• Date: 09 May 2003

KINCAID v. AER LINGUS TEORANTA

BETWEEN/

MARIA KINCAID

Plaintiff/Respondent

and

AER LINGUS TEORANTA

Defendant/Appellant

[2003] IESC 31

McGuinness J.

Geoghegan J.

McCracken J.

106/03

THE SUPREME COURT

Abstract:

Practice and procedure - Evidence - Disclosure of expert reports - Privilege - Privileged report contained in schedule subsequently not intended to be used as evidence at trial - Whether party identifying report or information in schedule obliged to subsequently furnish such report or information when not intended to be used as evidence at trial - Statutory interpretation - Purposive approach - Purpose of disclosure rules - Presumption of legality - Whether rules to be interpreted so as to maintain privilege over documents or other information - Courts and Court Officers Act, 1995 (No 31), section 45(1) - Rules of the Superior Courts, 1986 Order 39, rule 46.

section 45 of the Courts and Court Officers Act, 1995 empowered the rules-making committees of the courts to make rules requiring disclosure between the parties of any report or statement from any expert witness intended to be called to give evidence at the trial. Order 39, rule 46 of the Rules of the Superior Courts was drafted pursuant to that section requiring parties firstly to exchange a schedule of the reports intended to be relied on by witnesses at the hearing and thereafter to furnish copies of the reports themselves. The defendant included in its schedule of witnesses and reports, which it furnished to the plaintiff pursuant to that rule, a medical report which it then omitted when it was delivering all other reports listed in the schedule, as it informed the plaintiff that the author of that report would not now be called as a witness. The High Court (Kearns J) agreed with the plaintiff's contention that the defendant was not entitled to withdraw reliance on that witness for the purposes of the disclosure rules until after it had first furnished to the plaintiff copies of all the reports listed in the schedule. The defendant appealed that decision.

Held by Geoghegan J, delivering the judgment of the court in allowing the appeal that the Oireachtas was not intending to give any power to the Rules-making committees through section 45 of the Act of 1995 to alter the rules of privilege except in relation to evidence intended to be used at the hearing. Nor would it have been intended by the Oireachtas to prohibit a party from changing his mind as to whether he wanted to call a particular witness or not during some particular period within the pendency of an action. Therefore, once the defendant changed its mind about calling the author of the report in question it could not have been obliged thereafter to furnish it because the report was then a privileged document. This was because the purpose of the rules was not to disclose the strengths and weaknesses of each other's case but rather to prevent surprise evidence being produced at a trial which the other party at that stage would be unable to deal with.

Obiter dictum: the obligation under Order 39, rule 46(1) of the Rules of the Superior Courts is to exchange scheduled reports and if each party's solicitors ensures that a contemporaneous exchange of reports takes place there is no danger that the procedure could be abused so that one side could see the report of another and then, on foot of what it saw, withdraw reliance on a witness included in its schedule of reports and on the report itself, in the manner suggested by the plaintiff.

1 Mr. Justice Geoghegandelivered 9th of May 2003 [Nem Diss]

2 In recent years a welcome innovation has been introduced into personal injury litigation. There is now a requirement that the parties exchange expert reports where it is intended to call the relevant expert as a witness. It seems to have been decided by the powers that be that neither amended rules of court nor still less a practice direction would be sufficient for the enforcement of such new arrangement. Because of its effect on the long standing legal principles of privilege in relation todocuments prepared for the purposes of litigation a statutory backing was required. Hence the enactment of section 45 of the Courts and Court Officers Act, 1995which will be cited later on in this judgment. That section empowered the Superior Courts Rules Committee and the Circuit Court Rules Committee to make rules requiring disclosure between the parties of any report or statement from any expert intended to be called to give evidence of medical or paramedical opinion in relation to an issue in the case. The section also contained analogous provisions relating to other kinds of experts' reports and certain kinds of particulars and information appropriate to be exchanged. Apparently, it proved difficult to draft satisfactory rules pursuant to this section but the current rules and those which are relevant to this appeal are contained in the Rules of the Superior Courts (No. 6) (Disclosure of Reports and Statements), 1998 (S.I. No. 391 of 1998). These are new rules (45-51) inserted into Order 39 of the Rules of the Superior Courts. The new Rule 45 contains a number of definitions including a definitionof "report". But it is Rule 46 which is relevant to this appeal. In order to explain how the appeal arises and what the issues are I think it essential to cite the entire rule which reads asfollows:

"46. (1) The plaintiff in an action shall furnish to the other party or parties or their respective solicitors (as the case may be) a schedule listing all reports from expert witnesses intended to becalled within one month of the service of the notice of trial in respect of the action or within such further time as may be agreed by the parties or permitted by the court. Within seven days of receipt of the plaintiff's schedule, the defendant or...