Paul Harrington v Cork City Council and Another

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 30 January 2015
• Neutral Citation: [2015] IEHC 41
• Docket Number: [2011 No. 7566 P]
• Court: High Court
• Date: 30 January 2015

Harrington v Cork City Council & Cork Co Council

BETWEEN:-

PAUL HARRINGTON

PLAINTIFF

AND

CORK CITY COUNCIL AND CORK COUNTY COUNCIL

DEFENDANT

[2015] IEHC 41

[No. 7566 P/2011]

THE HIGH COURT

PRACTICE AND PROCEDURE

Disclosure

Expert reports - Simultaneous exchange - Non-existence of defendant's expert reports - Refusal to disclose expert reports - Courts - Jurisdiction - Interests of justice - Whether plaintiff entitled to require undertaking from defendant to refrain from making disclosed expert reports subsequently available to defendant's experts - Whether defendant acquiring unfair litigous advantage - Whether plaintiff required to disclose expert reports - Kincaid v Aer Lingus Teoranta [2003] IESC 31, [2003] 2 IR 314 applied - Galvin v Murray [2001] 1 IR 331; PJ Carroll & Company Ltd v The Minister for Health and Children (No 2) [2005] IEHC 267, [2005] 3 IR 457; Kirkup v British Rail Engineering Ltd [1983] 1 WLR 190 and National Justice Cia Naviera SA v Prudential Assurance Company Ltd [1993] 2 Lloyd's Reports 68 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 39, rr 46 and 50 - Directions made (2011/7566P - Kearns P - 30/1/2015) [2015] IEHC 41

Harrington v Cork City Council

Facts: A plaintiff sought damages for personal injuries sustained when removing another injured person from a vehicle involved in road traffic accident. The issue for the purposes of this case was the plaintiff"s obligation to disclose expert reports from those who were to be called to give evidence in the proceedings pursuant to Order 39, rule 46 of the Rules of the Superior Courts 1986. The first defendant delivered its disclosure schedule to the plaintiff listing the witnesses they intended to call. The first defendant reserved the right to call expert evidence or produce reports pursuant to any matters that arise during the proceedings. The plaintiff refused to furnish the defendant with copies of the reports referred to in its disclosure schedule. The plaintiff first wanted an undertaking from the first defendant. The plaintiff wanted to ensure that the reports from their experts would not be given directly or indirectly to any of the experts retained by the defendant until the defendant experts furnished their reports. The first defendant refused to limit its defence in such a way and the plaintiff therefore withheld their expert reports. The plaintiff submitted that in the interest of fairness his obligation to furnish reports should be allowed to be conditional upon the defendant agreeing to this undertaking.

Held by Kearns P: The court was satisfied that the fairness requires a simultaneous exchange of expert reports and that the European Court of Human Rights jurisprudence emphasises "equality of arms" in litigation. The court ordered that the plaintiff"s disclosure of his reports in accordance with O. 39, r. 46(3) be conditional upon the first defendant"s undertaking that those reports would not be given to any expert retained by the first defendant until after such expert has furnished his report.

RSC O.39 r46

RSC O.39 r46(1)

KINCAID v AER LINGUS TEORANTA 2003 2 IR 314

GALVIN v MURRAY 2001 1 IR 331

RSC O.39 r46(3)

PJ CARROLL & CO LTD v MIN FOR HEALTH & CHILDREN 2005 3 IR 457

RSC O.39 r50

KIRKUP v BRITISH RAIL ENGINEERING LTD 1983 1 WLR 190

NATIONAL JUSTICE CIA NAVIERA SA v PRUDENTIAL ASSURANCE CO LTD 1993 2 LLOYDS 68

1 JUDGMENT of Kearns P.delivered on the 30th day of January, 2015

2 1. The present proceedings were initiated by a personal injuries summons dated the 17 ^th August, 2011, wherein the plaintiff claims damages for alleged personal injuries sustained while removing an injured person from a motor vehicle at the scene of an accident on or about the 30 ^th October, 2010.

3 2. This is a matter which came before the Court by way of notice of motion dated the 8 ^th September, 2014, seeking the Court's direction in respect of the plaintiff's obligation to disclose the reports of experts intended to be called to give evidence in relation to issues in the within proceedings pursuant to Order 39, rule 46 of the Rules of the Superior Courts 1986, as amended.

4 3. The application is grounded on the affidavit of Mr. John Buckley, solicitor for the first named defendant, sworn on the 24 ^th June, 2014. Mr. Buckley deposed that by letter dated the 1 ^st March, 2012, solicitors for the plaintiff, Ernest J. Cantillion, delivered to Ronan Daly Jermyn, solicitors for the first named defendant, a disclosure schedule of expert witness reports from witnesses intended to be called at hearing pursuant to his obligations under Order 39, rule 46.

5 4. The first defendant delivered its disclosure schedule pursuant to the said statutory obligations by letter dated the 20 ^th September, 2013, listing the witnesses intended to be called. No expert witnesses or reports were disclosed, however, the first defendant reserved the right to call any expert evidence or produce expert reports pursuant to the proceedings 'as matters may arise'.

6 5. The first defendant thereafter requested the plaintiff to furnish it with copies of the reports referred to in its disclosure schedule. The plaintiff has, however, refused to do so absent an undertaking from the first defendant that it will not divulge the contents of the plaintiff's expert reports to any experts which the first defendant chooses to commission in advance of the trial. The first defendant has refused to limit the conduct of its defence in such a way and as a result the plaintiff has refused to deliver copies of the said reports to the first defendant. Thus, an impasse has arisen between the parties and it has fallen upon this Court to determine the matter.

Law

7 6. Order 39, Rule 46 of the Rules of the Superior Courts 1986 requires both the plaintiff and defendant in a personal injuries action to furnish a schedule listing all reports from expert witnesses intended to be called at trial prior to the trial date. The parties are thereafter required to exchange copies of the reports listed in the schedules. These requirements are contained in 0.39, r. 46(1) which reads as follows:-

8 2 "(1) The plaintiff in an action shall furnish to the other party or parties or their respective solicitors (as the...