Facts: A plaintiff sought damages for personal injuries sustained when removing another injured person from a vehicle involved in road traffic accident. The issue for the purposes of this case was the plaintiff’s obligation to disclose expert reports from those who were to be called to give evidence in the proceedings pursuant to Order 39, rule 46 of the Rules of the Superior Courts 1986. The first defendant delivered its disclosure schedule to the plaintiff listing the witnesses they intended to call. The first defendant reserved the right to call expert evidence or produce reports pursuant to any matters that arise during the proceedings. The plaintiff refused to furnish the defendant with copies of the reports referred to in its disclosure schedule. The plaintiff first wanted an undertaking from the first defendant. The plaintiff wanted to ensure that the reports from their experts would not be given directly or indirectly to any of the experts retained by the defendant until the defendant experts furnished their reports. The first defendant refused to limit its defence in such a way and the plaintiff therefore withheld their expert reports. The plaintiff submitted that in the interest of fairness his obligation to furnish reports should be allowed to be conditional upon the defendant agreeing to this undertaking.
Held by Kearns P: The court was satisfied that the fairness requires a simultaneous exchange of expert reports and that the European Court of Human Rights jurisprudence emphasises ‘equality of arms’ in litigation. The court ordered that the plaintiff’s disclosure of his reports in accordance with O. 39, r. 46(3) be conditional upon the first defendant’s undertaking that those reports would not be given to any expert retained by the first defendant until after such expert has furnished his report.
Download PDF file of Judgment here – Harrington v CCC – 2015