The recent High Court judgment in Harrington v Cork City Council and Cork County Council(1) clarified a party's disclosure obligations where one party does not hold any expert reports.
The court held where the plaintiff has obtained expert evidence but the defendant has not, the plaintiff is still under an obligation to disclose it's expert reports to the defendant under the disclosure rules, provided the defendant gives an undertaking not to send copies of the reports to their own experts when instructed. This rule applies to both parties in proceedings, however it must be noted that in accordance with the principles of Cooke v Cronin(2), the plaintiff must have supportive expert evidence in order to ground a claim for negligence against a medical practitioner.
The case confirms the principles of disclosure of expert evidence in a personal injuries action, as set out in the Rules of the Superior Courts. In making their decision, the court relied on the Supreme Court judgment of Kincaid v Aer Lingus Teoranta(3), which found that the exchange of expert evidence should be simultaneous, so as to avoid an abuse of process where one party may gain an advantage over the other. This was coupled with the courts reliance on the concept of an “equality of arms” between parties, which stems from recent European Court of Human Rights case law.
The court touched on a possible exception to the undertaking requirement, where the party without expert reports does not intend to retain an expert or lacks the means to do so. However, this did not apply to the facts of this case and therefore, the potential for this exception was not expanded on. Overall this decision reinforces the court's aim to ensure fairness between parties in the litigation process.