O'Leary v Mercy University Hospital Cork Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice MacMenamin
• Judgment Date: 31 May 2019
• Neutral Citation: [2019] IESC 48
• Docket Number: Record Number: 57/18,[S.C. No. 57 of 2018]
• Court: Supreme Court
• Date: 31 May 2019

BETWEEN/

DENIS O'LEARY

PLAINTIFF/APPELLANT

- and -

MERCY UNIVERSITY HOSPITAL CORK LIMITED

AND

KHALID M. ALI CHIAD AL-SAFI

DEFENDANTS/RESPONDENTS

[2019] IESC 48

MacMenamin J.

Clarke C.J.

O'Donnell Donal J.

MacMenamin J.

O'Malley Iseult J.

Finlay Geoghegan J.

Record Number: 57/18

THE SUPREME COURT

Medical negligence – Remuneration – Conflict of interest – Appellant seeking leave to appeal to the Supreme Court – Whether the level of remuneration paid created a conflict of interest with the consequence that witnesses were objectively biased

Facts: The appellant, Mr O’Leary, brought medical negligence proceedings against the respondents, Mercy University Hospital Cork Ltd and Mr Al-Safi. In a judgment delivered in the High Court by Quirke J on the 20th May, 2010, the proceedings were dismissed. Mr O'Leary appealed that decision. Subsequent to the High Court case, the appellant was furnished with the respondents' bill of costs. He claimed this step was taken to force him into abandoning his appeal. The bill included claims for fees and outlay in defence of the claim. It came to a total of €518,291.51. Of this, the State Claims Agency, the defendants’ indemnifier, claimed expert medical witnesses' fees in the sum of €57,705.60. The agency also claimed fees for taking an overnight transcript in the sum of €47,979.14. The appellant's solicitors sought particulars of the claim for the expert witnesses' fees. The claim was subsequently reduced somewhat to €48,000. The appellant alleged that, when analysed, the fees charged by two doctors who gave expert evidence for the respondents were so unusually high as to indicate a conflict of interest or what had been characterised in this appeal as ‘objective bias’, such as to call the entire High Court hearing into question and to render the trial of the action unsatisfactory. Counsel for the appellant brought a motion to the Supreme Court seeking to introduce the details of the doctors’ charges as additional evidence. He submitted that those fees were not known at the time of the High Court trial, and had they been known, the details of the charges would have been deployed in an application to have the testimony of the two doctors rendered inadmissible. Counsel submitted such an application would have succeeded. It was said there was an inequality of arms in the trial, thereby giving rise to a denial of the right to equality before the law under Article 40.3 of the Constitution, the right to a fair trial pursuant to Article 6(1) of the European Convention on Human Rights (ECHR), and the right to an effective remedy as set out in Article 13 of the ECHR. The appeal was subsequently remitted to the Court of Appeal after its establishment. On the 12th March, 2018, Peart J delivered judgment on behalf of that Court dismissing the appeal on all grounds. The appellant applied for leave to appeal to the Supreme Court. The determination of the Court was confined to one single issue; that is, whether the remuneration of the respondents’ witnesses raised a serious question as to their independence.

Held by MacMenamin J that, adopting the tests in National Justice Compania Naviera SA. v Prudential Assurance Company Limited [1993] 2 Lloyd's Rep 68 (the “Ikarian Reefer”), it had not been shown that the evidence was anything other than independent, objective and unbiased. MacMenamin J held that there was no sufficient basis for the Court to conclude that the trial was unsatisfactory, or that the evidence was such as might have been rendered inadmissible. MacMenamin J held that there was no sufficient evidence that would warrant a finding that, even had the facts regarding the charges been known, it would have affected the weight which the trial court would have attached to the evidence or its admissibility.

MacMenamin J held that the appeal would be dismissed and that the decision of the Court of Appeal would be upheld.

Appeal dismissed.

JUDGMENT of Mr. Justice MacMenamin delivered on the 31st day of May 2019

Introduction

1 Expert witnesses have played an important role in court proceedings since the earliest evolution of the common law. Such witnesses are often essential in assisting courts when reaching a conclusion on complex issues, whether they arise in a personal injury action, a commercial case, or a patent proceeding. However, there are, unfortunately, occasions when expert witnesses do not always appreciate their fundamental duty of independence and impartiality. Their primary duty is always owed to the court and not to their client or the person who retains them. The cost of obtaining expert testimony can form a significant component in overall litigation expenses. What may not always be clear, is that some cases where the ultimate outcome will be clear-cut actually come as far as the courtroom because of what are called ‘hired gun’ witnesses on one side or the other. Quite often the deficiencies in the testimony of such witnesses are discovered only at the door of the court or in the hearing itself, by which time the parties may have incurred significant costs. This problem not only concerns private litigants and their advisers. At a time when litigation and insurance costs are a source of public concern, these problems can have a broader impact on the public. Prudent lawyers, acting in the interests of their clients, will always ensure that the expert testimony they seek to adduce will stand up to scrutiny in court. Sometimes, however, as in this case, there is a conflict of expert evidence. In this appeal, the appellant alleges that there was a conflict of interest in his High Court case derived from the level of the respondents” witnesses” remuneration, He says this created a perception of objective bias which should have rendered the respondents” witnesses” evidence inadmissible, or of little weight, thereby rendering the High Court action, in which he was plaintiff, unsatisfactory. As this judgment seeks to make clear there is a real distinction between the test for objective bias applicable to a judge or decision maker and on the other hand the duties of an expert witness to maintain independence and impartiality

2 The appellant brought medical negligence proceedings against the respondents which resulted in a 21-day hearing. In a judgment delivered in the High Court by Quirke J. on the 20th May, 2010, the proceedings were dismissed ( [2010] IEHC 211). Mr. O'Leary appealed this decision. Subsequent to the High Court case, the appellant was furnished with the respondents' bill of costs. He claims this step was taken to force him into abandoning his appeal. The bill included claims for fees and outlay in defence of the claim. It came to a total of €518,291.51. Of this, the State Claims Agency, the defendants” indemnifier, claimed expert medical witnesses' fees in the sum of €57,705.60 The agency also claimed fees for taking an overnight transcript in the sum of €47,979.14. The appellant's solicitors sought particulars of the claim for the expert witnesses' fees. The claim was subsequently reduced somewhat to €48,000. The appellant alleges that, when analysed, the fees charged by two doctors who gave expert evidence for the respondents were so unusually high as to indicate a conflict of interest or what has been characterised in this appeal as “objective bias”, such as to call the entire High Court hearing into question and to render the trial of the action unsatisfactory.

3 The steps which are now outlined were taken prior to the establishment of the Court of Appeal, at a time when appeals from the High Court lay directly to this Court. The bill of costs was, therefore, furnished when the appeal was pending before this Court. Counsel for the appellant brought a motion to this Court seeking to introduce the details of the doctors” charges as additional evidence. He submitted that these fees were not known at the time of the High Court trial, and had they been known, the details of the charges would have been deployed in an application to have the testimony of the two doctors rendered inadmissible. Counsel submits such an application would have succeeded. It is said now there was an inequality of arms in the trial, thereby giving rise to a denial of the right to equality before the law under Article 40.3 of the Constitution, the right to a fair trial pursuant to Article 6(1) of the European Convention on Human Rights (‘ECHR’), and the right to an effective remedy as set out in Article 13 of the ECHR.

4 The appeal was subsequently remitted to the Court of Appeal after its establishment. On the 12th March, 2018, Peart J. delivered judgment on behalf of that Court (Ryan P., Peart J. and Whelan J.) dismissing the appeal on all grounds ( [2018] IECA 94). The appellant applied for leave to appeal to this Court.

5 The appellant's application for leave to appeal to this Court sought the reversal of the entire decision of the Court of Appeal. But many of the issues before the High Court were findings on matters of fact, which were within the province of the trial judge to determine ( Hay v O'Grady [1992] I I.R. 210). The determination of this Court was therefore was confined to one single issue; that is, whether the remuneration of the respondents” witnesses raised a serious question as to their independence. In acceding to the application, this Court observed that the issues sought to be raised might have been more appropriately brought in plenary proceedings where the facts could be explored in more detail, and where the witnesses would have had an opportunity to defend themselves. The issues which this court must address are whether, as the appellant contends, the level of remuneration paid, actually did create a conflict of interest with the consequence that the witnesses were “objectively biased”, the consequences said to flow from any such conclusion, and whether, as the appellant also contends, the...