THE LAW... Recent case law - Village Magazine

THE LAW... Recent case law

But the courts have recently started to take

a tougher line. In the now infamous 2022 case

of Duy v. McGee, an expert toxicologist for

the defendant stepped far beyond his remit in

a case concerning the inhalation of toxic

fumes by a family after spray-in insulation had

been installed in their house. Among his

comments were: that the family had lied

about when they had entered the house after

the work was done; that the lung damage they

suered could be explained by other work in

the house; and that the Irish law on the

doctrine of RES IPSA LOQUITUR unfairly

favoured the plaintis. He also sought to rely

on a study that had been commissioned by

the industry and had not been independently

peer-reviewed.

The Court of Appeal agreed with the trial

judge that the expert had abused his position.

But Mr Justice Maurice Collins made it clear

that the courts’ patience had run out. Not only

the expert witnesses but their instructing

legal teams had a duty to ensure the proper

presentation of expert evidence:

“As well as the duties of expert witnesses

themselves, I emphasise again the

responsibilities of legal practitioners. The

adverse consequences of calling an expert

witness who is unable or unwilling to comply

with their duties as such may not necessarily

be limited to the exclusion of their evidence,

serious as that may be for the party concerned.

It may also have adverse consequences in

costs. The Superior Courts have a broad

jurisdiction to make costs orders against non-

parties, if necessary by joining the non-party

as a party for that purpose”.

This means that the courts will be prepared

to make ‘wasted costs’ orders against both

solicitors and expert witnesses if expert

evidence is improperly presented in civil

cases. In non-legal language, this means that

if court time is ‘wasted’ with expert evidence

that should never have been presented, the

lawyers and experts may be personally

responsible for the costs incurred.

Although Ireland, like all common law

countries, has an adversarial justice system

it does not permit witnesses of any sort to act

as advocates. Justice requires expert

witnesses, like all witnesses, to tell ‘the truth,

the whole truth and nothing but the truth’.

This extends to telling the truth about their

expertise and specialist knowledge.

The fact that experts are not aware of their

duty of independence may be illustrated by a

recent 2023 case called O’Brien v Byrne

concerning a school relay race, where a child

collided with a wall and suered a fractured

elbow. It was claimed by the plainti that the

cones marking the race course were placed

too close to the wall.

A physical-education expert retained by the

defendant questioned the truthfulness of

some of the plainti’s account which, as in

Duy v McGee, was clearly outside her remit.

She was an experienced expert who had

acted in a number of cases. But she still did

not know that the Rules of the Superior Courts

required her report to contain a declaration of

independence.

Furthermore, it transpired that, in her cover

letter to the defendant’s solicitor, she had

expressed a “hope that the plainti would not

succeed in this litigation”. As observed by Ms

Justice Marguerite Bolger: “Such comments

have no place in an expert’s report and their

presence must question the expert’s

understanding of their role and their duty to

the court”.

Mark Tottenham is a barrister. He has

written two books on expert evidence: ‘A Guide

to Expert Witness Evidence’ (Bloomsbury

Professional, 2019); and The Reliable Expert

Witness (Clarus Press, 2021), a handbook for

any professionals who are required to write

reports or give evidence in court proceedings.

Calling n exper winess who is unble

or unwilling o comply wih heir duies

my lso hve dverse consequences

in coss. The Cours cn join non-pry

[expers nd lwyers] for h purpose”

Challenge to Christmas imprisonment

arising from delay in electronic payment of

€100 bail was unnecessary

Mlone v Governor of Cloverhill Prison [2023] IEHC 762 (High Cour

(Judicil Review), Kennedy J, 29 December 2023)

High Court refuses to grant leave for judicial review in a case where

an individual’s release on €100 bail was delayed due to electronic

fund transfer processing times over the Christmas period, on the

grounds that: (a) the issuing of proceedings was premature and

potentially unnecessary, as the prison had not acted unreasonably

given the holiday context; (b) more assertive engagement by the

solicitors with the prison’s representatives could have resolved the

issue without resorting to litigation; and (c) the proceedings were

moot as the parties engaged and appeared to be resolving the

matter.

Restrictions on movement during pandemic

were not unconstitutional

Ring v Miniser for Helh [2024] IEHC 323 (High Cour, Noln J, 31

My 2024)

High Court dismisses a challenge to the constitutionality of

regulations that imposed restrictions on movement and gatherings

during the COVID-19 pandemic. The plaintis, who faced criminal

charges for allegedly violating the restrictions, unsuccessfully

argued that the regulations were unconstitutional due to insucient

legislative oversight and the delegation of power to the Minister for

Health to create penal oences. The court held that the principles

and policies of the Health (Preservation and Protection and other

Emergency Measures in the Public Interest) Act 2020 were clear and

the safeguards within the Act, including consultation requirements

and a sunset clause, were appropriate. Consequently, the court

determined there was no abdication of the Oireachtas’s

constitutional role and the regulations did not constitute an

impermissible delegation of legislative function.

42 July-August 2024

Italian competition authority had

jurisdiction to investigate Irish airline

Rynir DAC v Compeiion nd Consumer Proecion Commission 

Anor [2024] IEHC 307 (High Cour, Brre J, 21 My 2024)

High Court grants order dismissing proceedings by an airline

against the Italian competition authority (AGCM) for lack of

jurisdiction, determining that the actions of the AGCM, which

included requesting investigative assistance from the Irish

Competition and Consumer Protection Commission (CCPC) and

conducting a search at the airline’s headquarters in Dublin, were

exercises of state authority. The court concluded that the

proceedings concerned ‘revenue, customs or administrative

matters’ and the liability of the state for acts and omissions in the

exercise of state authority, thus falling outside the scope of civil

and commercial matters under Article 1(1) of the Recast Brussels

Regulation. Consequently, the Irish courts did not have jurisdiction,

and any grievances the airline had with the AGCM’s actions must

be pursued in the Italian courts.

Appeal of false imprisonment sentence did

not have realistic prospect of success

DPP v Byrne [2024] IECA 107 (Cour of Appel (criminl), Kennedy J,

22 April 2024)

Court of Appeal refuses to extend time to appeal a sentence of seven

years with the ﬁnal two years suspended in respect of the false

imprisonment of a wife by her husband after he had stabbed her

with a knife, where the oender claimed to have lodged papers with

the prison governor but where they had not been lodged in court,

on the grounds that the level of culpability was high, and that the

appeal did not have a realistic change of success.

Personal injury date of knowledge could not

be extended by reliance on expert reports

Monghn v Molony [2024] IEHC 287 (High Cour, Bolger J, 13 My

2024)

High Court dismisses a personal injury claim as statute barred,

determining: (a) that the plainti had been aware of the signiﬁcant

injury and its potential attribution to the defendant’s alleged

negligence within the statutory time limit; (b) that the plainti’s

reliance on later expert reports did not extend the period for

initiating proceedings, as the essential knowledge of the injury’s

signiﬁcance and its connection to the defendant’s actions was

established prior to the expiration of the statutory limit; and (c) the

proceedings were not ﬁled within the required timeframe and were

therefore statute barred.

Use of simpliﬁed Chinese characters upheld

for leaving certiﬁcate mandarin exam

B [A Minor] v Miniser for Educion  Ors [2024] IEHC 313 (High

Cour, Simons J, 29 My 2024)

High Court refuses judicial review of the marking scheme for the

Leaving Certiﬁcate examination in Mandarin Chinese, which

favoured the use of ‘simpliﬁed’ Chinese characters over ‘traditional’

characters, on the grounds that: (a) there was no requirement for

the marking scheme to be established by Ministerial Regulations

under statute; (b) the applicant’s claim of discrimination based on

cultural and linguistic heritage was not established, as all

candidates were assessed equally under the same syllabus and

marking scheme; (c) that the State Examinations Commission had

discretion in the logistics of teaching and examining foreign

languages; and (d) that the decision to focus on simpliﬁed

characters was rational and lawful.

Racing body could be represented at appeal

by UK barrister not qualiﬁed in Ireland

Mrin v Irish Horse Rcing Bord CLG [2024] IEHC 305 (High Cour,

Mulchy J, 16 My 2024)

High Court refuses judicial review of a decision of the Appeals Body,

an independent regulatory authority for horse racing in Ireland,

which had concluded that the initial penalty for a licensed trainer

whose horse tested positive for a prohibited substance was unduly

lenient, and upheld a six-month license withdrawal, suspending

only the ﬁnal three months, and conﬁrmed a €10,000 ﬁne, with a

stay on collection until the trainer could resume business, on the

grounds that there was no unlawfulness in the Irish Horse Racing

Board being represented by a UK barrister as provided for by the

Rules of Racing, and that it did not conﬂict with the Legal Services

Regulation Act 2015.

Wind farm development granted permission

despite visual impact concerns and

proximity to water source

Roche v An Bord Plenl [2024] IEHC 311 (High Cour, Pheln J, 21

My 2024)

High Court refuses judicial review of decision to grant permission

for the development of an 11-turbine wind farm, rejecting challenges

based on visual impact, water supply concerns, and turbine setback

distances, the court ﬁnding that An Bord Pleanála had adequately

considered the environmental impact on the local water source, and

that the visual impact on the landscape was suciently assessed;

and the Board’s decision to grant permission was supported by

comprehensive Environmental Impact Assessment reports and did

not require a site visit by Board members.

July-August 2024 43