Sweeney & Anor v The Voluntary Health Insurance Board (Unapproved) [2020] IECA 150 (09 June 2020)

Sweeney & Anor v The Voluntary Health Insurance Board (Unapproved) [2020] IECA 150 (09 June 2020)

The High Court erred in applying a test requiring likelihood of recourse to privileged material; the correct test is whether there is any real risk of disclosure or use of confidential/privileged information. Given Professor McDowell's prior engagement by VHI, receipt of significant privileged/confidential material, and overlap of issues, there is a real risk of inadvertent disclosure. The only effective remedy is exclusion of Professor McDowell as expert witness for the plaintiffs.

Citation
[2020] IECA 150
Parties
Plaintiff/respondent: Shay Sweeney; Plaintiff/respondent: The Limerick Private Limited; Defendant/appellant: The Voluntary Health Insurance Board Limited
Jurisdiction
Ireland
Judgment Date
09 June 2020
Procedural Posture
Appeal / Judgment on Appeal Against High Court Order Refusing Exclusion of Expert Witness
Outcome
Appeal allowed; Professor McDowell excluded as expert witness for plaintiffs.
Legal Topics
Expert Witness Exclusion, Abuse of Dominance, Confidentiality, Legal Professional Privilege
Competition Law Civil Procedure Evidence Expert Witness Exclusion Abuse of Dominance Confidentiality Legal Professional Privilege

Case Brief

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Parties

Shay Sweeney

Plaintiff/respondent

The Limerick Private Limited

Plaintiff/respondent

The Voluntary Health Insurance Board Limited

Defendant/appellant

Procedural Posture

Appeal / Judgment on Appeal Against High Court Order Refusing Exclusion of Expert Witness

Legal Issues

  1. 1 Whether Professor McDowell should be excluded as expert witness for plaintiffs due to prior engagement by VHI and receipt of privileged/confidential information
  2. 2 Appropriate legal test for exclusion of expert witnesses based on conflict of interest and risk of disclosure

Ratio Decidendi

The High Court erred in applying a test requiring likelihood of recourse to privileged material; the correct test is whether there is any real risk of disclosure or use of confidential/privileged information. Given Professor McDowell's prior engagement by VHI, receipt of significant privileged/confidential material, and overlap of issues, there is a real risk of inadvertent disclosure. The only effective remedy is exclusion of Professor McDowell as expert witness for the plaintiffs.

Court Disposition

Appeal allowed; Professor McDowell excluded as expert witness for plaintiffs.

Orders

  • Professor McDowell is excluded from acting as expert witness for the plaintiffs in these proceedings.
  • Plaintiffs to engage a different expert witness.