O’Donovan v. Cork County Council [2024] IEHC 33

The High Court has stayed personal injury proceedings until the Plaintiff submits to examination by a further expert orthopaedic surgeon retained by the Defendant despite opposition on the basis of “expert-shopping”.

Mr Justice Holland observed that there was no direct authority as to whether a Defendant is entitled to obtain a second opinion from a certain medical specialty and whether the Plaintiff was obliged to submit himself to examination by that second expert, but recognised that the test is one concerned with fairness and the interests of justice having regard to all the circumstances.

The Court supported the Defendant’s submission that the Plaintiff was confusing the prohibition on calling more than one expert of a given specialty under Order 39, Rule 58(3) of the Rules of the Superior Courts 1986 with the process of disclosure of reports and the question of whether a party is entitled to retain multiple experts of a certain specialty before deciding which (if any) of them to call as a witness.

The Judge stated: “There is no reason, for example, why a Defendant should not retain multiple engineers to inspect a locus of an accident and decide ultimately which of them if any to call as a witness. Indeed, the Defendant makes a reasonable point that, as a Plaintiff is not dependent upon the Defendant’s cooperation in that regard, a Plaintiff can bespeak reports from various doctors — even of the same specialty — before deciding which of them to disclose and thereafter to call as witnesses.”

Agreeing with the Defendant’s reliance on Defender Limited v HSBC Institutional Trust Services (Ireland) Ltd. [2018] IEHC 543 in which Twomey J. accepted that the “one-expert rule” deals with the admission of evidence and not the delivery of expert reports, the court emphasised: “What makes the position as to doctors… different is that the Defendant’s examination is dependent upon the Plaintiff’s cooperation, so the Plaintiff is in a position to object. A Plaintiff…waives certain of his or her rights of privacy as to his or her medical condition… That waiver is however, limited by the scope of the reasonable requirements of the Defendant. What is reasonable depends on all the circumstances assessed in the context of the Defendants’ constitutional rights as to its conduct of the litigation.”

Noting the Plaintiff’s contention that the Defendant’s motion was designed to permit “expert-shopping”, Mr Justice Holland stated that:

“there is no definition of, or black letter rule in terms against, expert-shopping. The parties were unable to cite any Irish cases explicitly addressing the phrase… While it is to be deprecated, questions of degree arise. There is no rule that a party, plaintiff or defendant, in investigating a case is bound irrevocably by the opinion of the first expert consulted. Litigation is adversarial and, within bounds, legitimately tactical. To say that a proposed course of action is driven only by tactical considerations is not to say, necessarily, that it is forbidden.”

Conclusion

Accordingly, the Court stayed the proceedings pending the examination of the Plaintiff by Professor Harty.

 

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