THE LAW... Recent case law
But the courts have recently started to take
a tougher line. In the now infamous 2022 case
of Duy 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 defendants 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 experts 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