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knowledge 6 December 2018 |

Delivery of Expert Reports – A One Time Only Event?

In 2016, significant amendments were made to the Rules of the Superior Courts to address inefficiency and delay in the court system. These included certain provisions to ensure that expert evidence is presented to the court in an efficient manner. A recent case gives an interpretation of one aspect of those rules.

In relation to expert evidence, Order 39 rule 58(1) sets out the general flavour of what is to follow. It provides that:

“Expert evidence shall be restricted to that which is reasonably required to enable the Court to determine the proceedings.”

This is copper fastened by Order 39 rule 58(3) which provides that:

“Save where the Court for special reason so permits, each party may offer evidence from one expert only in a particular field of expertise on a particular issue. Such permission shall not be granted unless the Court is satisfied that the evidence of an additional expert is unavoidable in order to do justice between the parties.” (emphasis added)

In Defender Ltd v HSBC Institutional Trust Services (Ireland) Ltd,1 Defender had brought proceedings against HSBC alleging negligence and breach of contract in relation to its alleged role as a custodian of funds on its behalf. Defender served three experts reports. This was met with eleven expert reports from its opponent. Defender then applied to the court to serve additional expert reports to rebut certain of those which it had received.

However, HSBC argued that this was impermissible based on the language of Order 39 rule 58(3). Defender countered that this rule dealt with the admission of evidence to a court and not to the delivery of expert reports. Accordingly, it could not be used to prevent the delivery of additional expert reports, since they were not being admitted in evidence at that juncture. 

Defender also pointed out that at the directions stage, where the case currently was, a judge might not be sufficiently informed about the case to make a decision about whether one expert overlapped with another or whether an additional expert was unavoidable in the interests of justice. This was particularly so in a complex case involving a significant amount of court time. Twomey J agreed, saying that Order 39 rule 58 could not be relied upon here to prevent the delivery of additional expert reports.

He also noted that in deciding whether to give liberty to serve additional expert reports, the court would consider any prejudice to the opposing party. There was none here apart from the loss of a tactical advantage. The interests of justice were the paramount consideration here and these favoured allowing service of the reports. In exercising its discretion in favour of Defender, the court also relied on the fact that Defender had not been guilty of any significant non-compliance with the case management process to date.

Comment

This is an interesting judgment showing the operation of these still relatively new rules in practice. A perusal of the judgment also illustrates the attention which the judiciary will bring to bear on these types of applications.

  1. [2018] IEHC 543.

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.