by Katie Nugent , Shauna Marron December-15-2022 in Healthcare Law

In the recent decision of Joan O’Flynn v The HSE & others [2022] IECA 83, the Court of Appeal dismissed an appeal by a defendant, to medical negligence proceedings, in which they sought to compel the plaintiff to deliver expert reports pursuant to Order 39, Rule 46 RSC, as introduced by S.I. 391 of 1998.

In delivering judgment, Mr Justice Noonan referred to the ‘significant shortcomings’ in the disclosure regime introduced by S.I. 391 of 1998 and suggested it may ‘benefit from recalibration.’

High Court

The fourth named defendant (‘the Defendant’) to the proceedings issued a motion seeking to compel the plaintiff to disclose all expert reports. The plaintiff had delivered its schedule of witnesses under S.I. 391 of 1998 (‘schedule’), listing 9 experts. The defendant delivered its schedule, with no witnesses listed thereon.

The defendant requested an exchange of reports and offered a Harrington undertaking.[1] The plaintiff did not disclose their reports and the defendant issued a motion.

Mr Justice Cross accepted that the reports were due to be disclosed as per S.I. 391 of 1998. However, the plaintiff opposed the application on the basis that the defendant was seeking to assess the strengths and weaknesses of the plaintiff’s claim prior to instructing their own expert and further that this was not a ‘normal defendant’ as the defendant had a number of resources open to them. Mr Justice Cross accepted this and was of the view that a Harrington undertaking was not sufficient to ensure fairness and noted there was a risk of a ‘litigious advantage’ to a ‘well heeled’ and ‘well[resourced] defendant.’

Mr Justice Cross declined to make the Order based on the Harrington undertaking only and suggested if the defendant gave an undertaking that the reports would not be disclosed to the defendant itself and only to the legal team, then he would be prepared to make such Order. The defendant did not provide this undertaking.

Court of Appeal

The court held that a Harrington undertaking would not be sufficient in the circumstances of this case, given the defendant’s expertise in the area.

Mr Justice Noonan noted that a ‘where a literal application of the rules has the potential to result in injustice, the court will intervene to ensure the equality of arms that the rules were intended to assure. The rules themselves cannot be permitted to become a source of unfairness.’

On that basis, he suggested the following approach:

  1. Each party’s disclosure schedule should identify the experts it intends to call to give evidence and their areas of expertise, whether they have written a report or not;
  2. Exchange of expert reports should, where possible, occur on a simultaneous basis;
  3. Where either party has not yet decided what, if any, experts they intend to call, or has so decided but not yet received a report, exchange of expert reports should be undertaken on a like for like basis as reports become available.
  4. Where genuine difficulty arises in identifying what amounts to like for like, resolution would be facilitated by each party indicating in a general way what issue or issues in the case the expert’s evidence is directed towards;
  5. Where the defendant confirms that it does not intend to call an expert to give evidence on a particular issue, the plaintiff should furnish her expert reports on that issue subject, if required, to a Harrington undertaking;
  6. If, having seen any expert report of the plaintiff, the defendant decides that, contrary to an earlier indication, it now wishes to call an expert in relation to an issue disclosed in the plaintiff’s report(s), it should satisfy the High Court that it is in the interests of justice that it be permitted to do so;
  7. Any necessary application in that regard should be made, where possible, on foot of a motion on notice grounded on affidavit;
  8. The stipulations at (v), (vi) and (vii) will apply mutatis mutandis to the plaintiff;
  9. The parties must remain free to withdraw any expert from their schedule as they see fit.

Mr Justice Noonan stated that ‘other cases may of course require a different solution as unforeseen issues arise and what is suggested here is by no means intended to apply in every personal injury action, or even every such claim involving professional negligence.’ On that basis he dismissed the appeal.


Although the decision of the Court of Appeal in this case was specific to the circumstances of the case and in particular the specific expertise held by the particular defendant, it shows the courts approach in trying to ensure that an ‘equality of arms’ and a ‘level playing field’ exist between the parties to litigation and seeks to avoid a situation whereby one party in litigation enjoys a ‘litigious advantage’ over another.  


[1] A Harrington undertaking arose from Harrington v Cork County Council [2015] IEHC 41 . The Court held that where a plaintiff has expert evidence, but the defendant has not, the plaintiff is still under an obligation to disclose its expert reports subject to the defendant undertaking not to provide the reports to their own experts until such expert has furnished his report.


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