Shay Sweeney and The Limerick Private Ltd v The Voluntary Health Insurance Board Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Donnell
• Judgment Date: 09 September 2021
• Neutral Citation: [2021] IESC 58
• Court: Supreme Court
• Docket Number: S:AP:IE:2020:000123

Between/

Shay Sweeney and The Limerick Private Limited

Appellants

and

The Voluntary Health Insurance Board Ireland

Respondent

[2021] IESC 58

O'Donnell J.

Dunne J.

O'Malley J.

Baker J.

Woulfe J.

S:AP:IE:2020:000123

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Expert witness – Exclusion – Conflict of interest – Respondent seeking the exclusion of an expert witness for the appellants – Whether there was a conflict of interest

Facts: The appellants, Mr Sweeney and The Limerick Private Ltd, over the course of several years beginning in 2006, were involved in negotiations with the respondent, the Voluntary Health Insurance Board Ireland (the VHI), regarding the provision of cover to customers of the respondent at a future private hospital to be built by the second appellant in Limerick City. The VHI eventually refused to provide such cover and the negotiations between the parties ceased in 2014. One of the VHI’s primary reasons for refusing to provide cover was its assessment that new hospital beds were not necessary in the region. A motion was issued by the respondent on 26th November, 2018, seeking the use of the High Court’s inherent jurisdiction to prevent Professor McDowell, former Professor of Economics at University College Dublin, from giving expert evidence on behalf of the appellants in the substantive action. The VHI’s basis for such an application was Professor McDowell’s involvement in two other similar proceedings on behalf of the VHI since 2010 in which they were, similarly to these proceedings, accused of abusing a position of dominance in relation to plans for the construction of two different private hospitals in Cork and Dublin (RAS Medical Ltd t/a Auralia/Park West Clinic v The Voluntary Health Insurance Board (Record No. 2010/5731 P) (RAS) and CMC Medical Operations (In Liquidation) t/a Cork Medical Centre v The Voluntary Health Insurance Board (Record No. 2012/1101 P) (CMC)). The motion was heard by Barrett J on 24th May, 2019, with a judgment delivered a few days later, on 28th May, 2019 ([2019] IEHC 360). Barrett J refused the application though ordered the giving of an undertaking by Professor McDowell that he would not disclose any confidential or privileged information which he had received during his previous work for the respondent in the CMC and RAS proceedings. The VHI appealed that decision to the Court of Appeal which, in a judgment of Collins J, allowed the appeal ([2020] IECA 150). The appellants sought leave to appeal to the Supreme Court following the decision of the Court of Appeal, which leave was granted in a determination dated 8th April, 2021 ([2021] IESCDET 36).

Held by O’Donnell J that Collins J in the Court of Appeal was entirely correct in his assessment of the matter. O’Donnell J held that if Professor McDowell was allowed to continue to act in the proceedings, there would be a real and sensible risk of disclosure of information obtained by him in circumstances of confidence while acting for the VHI in the CMC and RAS litigation. In so concluding, O’Donnell J had considered the case only through the perspective of the claim to restrain the use of privileged and confidential information by precluding the recipient from acting as an expert witness in the case.

O’Donnell J held that the decision of the Court of Appeal would be upheld, and the appeal dismissed.

Appeal dismissed.

Judgment of Mr. Justice O'Donnell delivered the 9 ^th day of September, 2021 .

I – Introduction

A. Background

1 . Over the course of several years beginning in 2006, the appellants, Shay Sweeney and The Limerick Private Limited, a company in which Shay Sweeney acted as director, were involved in negotiations with the Voluntary Health Insurance Board Ireland (“the VHI” or “the respondent”) regarding the provision of cover to customers of the respondent at a future private hospital to be built by the second named appellant in Limerick City. The VHI eventually refused to provide such cover and the negotiations between the parties ceased in 2014. One of the VHI's primary reasons for refusing to provide cover was its assessment that new hospital beds were not necessary in the region.

2 . This appeal arises not from the substantive proceedings between the parties, but instead from a motion issued by the respondent on November 26 ^th, 2018, seeking the use of the Court's inherent jurisdiction to prevent Professor Moore McDowell, former Professor of Economics at University College Dublin, from giving expert evidence on behalf of the appellants in the substantive action. The VHI's basis for such an application was Professor McDowell's involvement in two other similar proceedings on behalf of the VHI since 2010 in which they are, similarly to the instant proceedings, accused of abusing a position of dominance in relation to plans for the construction of two different private hospitals in Cork and Dublin. Of these two proceedings ( RAS Medical Ltd. t/a Auralia/Park West Clinic v. The Voluntary Health Insurance Board (Record No. 2010/5731 P) (“ RAS”) and CMC Medical Operations (In Liquidation) t/a Cork Medical Centre v. The Voluntary Health Insurance Board (Record No. 2012/1101 P) (“ CMC”)), only the CMC proceedings are still live, though Professor McDowell's last involvement in either case was on May 29 ^th, 2012. In the CMC proceedings, the Court of Appeal refused the VHI's application for security for costs in 2015 ( [2015] IECA 68). Since then, a notice of intention to proceed was filed on December 16 ^th, 2019, and there has been no further action since.

3 . On May 26 ^th, 2015, the appellants issued proceedings in the High Court alleging an abuse of a dominant position by the VHI contrary to Article 102 of the Treaty on the Functioning of the European Union (“TFEU”) and s. 5 of the Competition Act 2002.

4 . Some two years after the commencement of the substantive proceedings, the appellants first consulted Professor McDowell on October 6 ^th, 2017. A month later, on November 17 ^th, 2017, McCann FitzGerald, the firm which had represented the VHI in the earlier proceedings as well as the present proceedings, were informed of Professor McDowell's involvement on behalf of the appellants, and a solicitor in the firm contacted Professor McDowell directly that same day in relation to this. On December 11 ^th, McCann FitzGerald wrote to the appellants' solicitor, Ms. McCarthy, expressing surprise at Professor McDowell's retainer given his previous involvement in two cases “where claims directly analogous to those advanced by your client were made against the VHI”. The following day, the proceedings were in for mention on the competition list in the High Court and counsel for the respondent raised this issue with the judge presiding over the list as had been adverted to in the previous day's letter.

5 . Further letters were sent by McCann FitzGerald to Ms. McCarthy on March 1 ^st, 2018, and April 9 ^th, 2018, again querying Professor McDowell's work on their behalf. The letters – as did that of December 2017 – went unanswered. The exchange of pleadings in the substantive proceedings continued during the first half of 2018, and on October 9 ^th, 2018, counsel for the respondents informed the High Court that a motion seeking to prevent Professor McDowell from giving expert evidence on behalf of the appellants would issue within six weeks. That motion did eventually issue on November 26 ^th, 2018, and is now the subject matter of this appeal.

B. High Court

6 . The motion was heard by Barrett J. on May 24 ^th, 2019, with a judgment delivered a few days later, on May 28 ^th, 2019 ( [2019] IEHC 360).

7 . In his judgment, Barrett J. refused the application though ordered the giving of an undertaking by Professor McDowell that he would not disclose any confidential or privileged information which he had received during his previous work for the respondent in the CMC and RAS proceedings.

8 . The Court considered an extract from an English textbook, T. Hodgkinson & M. James, Expert Evidence: Law and Practice (2014: Sweet & Maxwell, 4 ^th ed.) (“Hodgkinson & James”), which stated that the test for the exclusion of an expert was whether it was likely that the expert would be unable to give their evidence without reliance on privileged information. This test had been applied in two cases from the courts of England & Wales, Meat Corporation of Namibia Ltd v. Dawn Meats (UK) Ltd. [2011] EWHC 474 (Ch.) (“ Meat Corporation”) and A Lloyd's Syndicate v. X [2011] EWHC 2487 (Comm.), [2012] 2 Lloyd's Rep 123 (“ Lloyd's Syndicate”), where the judges had in turn relied on the earlier case of Harmony Shipping Co. v. Saudi Europe [1979] 1 W.L.R. 1380 (“ Harmony Shipping”) in which Lord Denning M.R. had commented that there was “no property” in a witness. Barrett J. noted that these remarks had been cited with approval in McGrory v. ESB [2003] IESC 45, [2003] 3 I.R. 407 (“ McGrory”), and thus had been adopted into Irish law, and applied in subsequent cases such as Payne v. Shovlin & Ors [2004] IEHC 430 (Unreported, High Court, Dunne J., December 17 ^th, 2004) (“ Payne”) and Power v. Tesco Ireland [2016] IEHC 390 (Unreported, High Court, Barrett J., July 11 ^th, 2016) (“ Power”).

9 . Though the respondents urged the Court to adopt the test advanced in a different English case, Prince Jefri Bolkiah v. KPMG [1999] 2 A.C. 222 (“ Bolkiah”) – namely, a test of whether there was a real risk of reliance on the privileged information – Barrett J. declined to apply this test as he considered that that test required the same standard to be applied as to the relationship of a solicitor and client, which relationship, he found, was different to that of an expert witness and their client. Citing Lloyd's Syndicate, the Court noted that the burden of proving the likelihood of disclosure was on the moving party, and Barrett J. found that the VHI had not met this threshold....