Sweeney v The Voluntary Health Insurance Board Ireland

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 28 May 2019
• Neutral Citation: [2019] IEHC 360
• Docket Number: 2015 No. 4210 P
• Court: High Court
• Date: 28 May 2019

[2019] IEHC 360

THE HIGH COURT

Barrett J.

2015 No. 4210 P

Between:

SHAY SWEENEY

AND

THE LIMERICK PRIVATE LTD

Plaintiffs

– AND –

THE VOLUNTARY HEALTH INSURANCE BOARD IRELAND, THE MINISTER FOR HEALTH

AND

THE ATTORNEY GENERAL

Defendants

Competition law – Expert witness – Implied term – Defendant seeking an order excluding an expert witness for the plaintiffs – Whether it was an implied term of the defendant’s contract with the expert witness that he would not act as an expert witness for any party to litigation against the defendant in respect of the same or similar matters in respect of which he was instructed by the defendant

Facts: The first defendant, the Voluntary Health Insurance Board Ireland (VHI), sought an order, to be made pursuant to the High Court’s inherent jurisdiction, excluding Professor McDowell as an expert witness for the plaintiffs, Ms Sweeney and the Limerick Private Ltd, in competition law proceedings. VHI had retained Professor McDowell non-exclusively in various contentious matters since at least 2003, including CMC Medical Operations Ltd (in liq.) t/a Cork Medical Centre v VHI and RAS Medical Ltd t/a Auralia/Park West v VHI (together the ‘Other Proceedings’). The claims asserted by the plaintiffs in the Other Proceedings were similar to those made in these proceedings, viz. that VHI abused an alleged dominant position in deciding not to provide insurance cover. However, the Other Proceedings and these proceedings were not identical.

Held by Barrett J that it follows from Teare J’s observations in A Lloyd’s Syndicate v. X [2011] EWHC 2487 (Comm) that, in an application such as the within, the burden of proof rests on the applicant to show that the expert will misuse confidential or privileged information. Barrett J held that this burden had not been discharged. Regarding VHI’s contention that it was an implied term of its contract with Professor McDowell that he would not act as an expert witness for any party to litigation against VHI in respect of the same or similar matters in respect of which he was instructed by VHI, the court struggled with the notion that it could safely imply a term into a contract when it had not seen any written version of same and had little enough evidence as to the substance of whatever may have been agreed orally. Barrett J noted that there was no suggestion that Professor McDowell could not properly be regarded as independent by virtue of some pre-existing relationship with the plaintiffs. The court did not see in the conclusions to which the law directed it in these proceedings any breach of that “basic procedural fairness” referred to in Re Parkin [2019] IEHC 56.

Barrett J held that the court would refuse the application brought; however, in an abundance of caution, it would direct Professor McDowell to give the form of undertaking mentioned by counsel for the plaintiffs at the hearing of the application.

Application refused.

JUDGMENT of Mr Justice Max Barrett delivered on 28th May, 2019.

1 VHI seeks an order, to be made pursuant to the court's inherent jurisdiction, excluding Professor Moore McDowell as an expert witness for the plaintiffs in these competition law proceedings. VHI has retained Professor McDowell non-exclusively in various contentious matters since at least 2003. These include CMC Medical Operations Ltd (in liq.) t/a Cork Medical Centre v. VHI and RAS Medical Ltd t/a Auralia/Park West v. VHI (together the “Other Proceedings”). The CMC proceedings remain live. The claims asserted by the plaintiffs in the Other Proceedings, are similar to those made in these proceedings, viz. that VHI abused an alleged dominant position in deciding not to provide insurance cover. However, the Other Proceedings and these proceedings are not identical. In passing, the court notes that it is (rightly) not disputed that: (i) a duty of confidentiality arises as regards private/commercially sensitive information previously communicated by VHI to Professor McDowell in his capacity as their witness; (ii) Shanley J.'s observations in National Irish Bank v. RTÉ [1998] 2 IR 465, 474, as affirmed on appeal, accurately describe that duty.

2 Professor McDowell has filed an affidavit in which he avers, inter alia: a. ‘ I am fully cognisant of my duties…as an independent expert pursuant to, inter alia, O. 39, r.57(1) of the Rules of the Superior Courts and it is my duty to assist the court as to matters within my field of expertise’; b. ‘ I was retained by the VHI in respect of…the Analogous Proceedings [the shorthand term invented by VHI for the “Other Proceedings”]. However…I disagree that the issues in these proceedings are the same as the within proceedings’; c. ‘ Prior to my retention by the VHI in the Analogous Proceedings, I had acted for a plaintiff against the VHI in competition law proceedings’; d. ‘[A solicitor for McCann FitzGerald has averred that] I was furnished with highly confidential, privileged and highly sensitive commercial information in the context of the Analogous Proceedings. I confirm that I have no hard copy documentation in my possession or procurement relating to those proceedings. I have searched my computer system and can find no confidential information relating to same’; e. ‘ I have not consulted or utilised any documentation or information, confidential or otherwise, provided to me on behalf of the VHI, and any statistical information used has been only such as is a matter of public record, in respect of the provision of my professional opinion to the Plaintiff in the within proceedings’; f. ‘ I was retained by the plaintiffs in the within proceedings…and had an initial consultation on the 6th of October 2017. I confirm that I have prepared a draft report….I have not used any information, confidential or otherwise, obtained from the VHI in other matters in the preparation of this report.’

3 In terms of chronology, a number of dates of interest might be mentioned:

May 2012 This was the date of the last involvement of Professor McDowell in the RAS or CMC proceedings.

26.05.2015 Plenary summons issues in the within proceedings.

06.10.2017 First consultation by plaintiffs in the within proceedings with Professor McDowell.

17.11.2017 Professor McDowell receives phone call from McCann FitzGerald querying his representation of the plaintiffs herein.

23.11.2018 Within motion issues.

4 Notably there is: (i) a 5½ year period between May 2012 (the date of the last involvement of Professor McDowell in the RAS/CMC proceedings and November 2017 (the date of the first consultation between Professor McDowell and the plaintiffs in these proceedings); (ii) a (striking) just over one-year period between the telephone call of November 2017 and the issuance of the motion grounding the within proceedings.

5 As to the law applicable to this application, the following points might be made:

(1) Hodgkinson and James in Expert Evidence: Law and Practice, 4th ed. (2015) observe, at para. 8-006, and the court considers this a good statement of applicable Irish law, that ‘ Where an individual expert has accepted instructions to act for party B but previously received confidential and privileged information while being considered for the role of expert witness or while actually instructed as an expert for Party A, the court may grant an injunction, or make a procedural direction, restraining the expert from acting for Party B. The test is whether it is likely that the expert would be unable to avoid having resort to privileged material.39’ Such avoidance is possible here. Moreover, the court notes the comfort to be drawn by VHI in this regard from the above-quoted averments of Professor McDowell at d-f. The court notes also the 5½ year period referenced in the previous paragraph. Expert witness though Professor McDowell may be (and is), his memory of matters from several years past doubtless fades to much the same extent as the rest of us. (Footnote 39 in the last-quoted text refers the reader to Meat Corporation of Namibia Ltd v. Dawn Meats (UK) Ltd [2011] EWHC 474 (Ch.) and A Lloyd's Syndicate v. X [2011] EWHC 2487 (Comm), both of which draw on the earlier decision of the Court of Appeal in Harmony Shipping Co. v. Saudi Europe [1979] 1 WLR 1380. These cases are considered below).

(2) So far as is relevant to this application, in Meat Corporation the claimant challenged the defendant's choice of expert on the grounds that the expert had received confidential and privileged information from the claimant when discussing whether to accept engagement as an expert for same. The claimant sought to rely on Prince Jefri Bolkiah v. KPMG [1999] 2 AC 222. However, Prince Jefri was a case in which accountants were found essentially to have occupied the same role as solicitors ( Meat Corporation, para.25). In Meat Corporation, Mann J. did not consider that Prince Jefri...