Home Knowledge Is Change on the Horizon for the Disclosure Regime Under Order 39, Rule 46 RSC?

Is Change on the Horizon for the Disclosure Regime Under Order 39, Rule 46 RSC?


In a recent decision, O’Flynn v HSE & Ors IECA 83, the Court of Appeal (CoA) considered the interpretation and application of Order 39, Rule 46 of the Rules of the Superior Courts (RSC).  Order 39, Rule 46 sets out the disclosure rules in High Court personal injury claims, regarding the exchange of expert reports.  The decision suggests a novel roadmap to resolve the impasse between the parties in the case. 

High Court 

The fourth defendant (defendant) sought an order directing the plaintiff to exchange all expert reports listed on her Schedule of Experts and Witnesses as required under Order 39, rule 46 RSC.  Order 39, rule 46 provides for the exchange of a schedule listing all reports from expert witnesses to be called by the parties (Schedule).  The parties are then required to exchange copies of the reports listed in their respective Schedules.  

The defendant offered a Harrington undertaking in respect of the reports which were not “like for like” on the respective Schedules.  The plaintiff did not want to accept this. The High Court (Court) appeared to accept that all reports fell due to be exchanged but refused to order an exchange of all reports despite the Harrington undertaking being offered.  The Court suggested that, in addition to providing a Harrington undertaking, if the defendant’s legal team would undertake not to provide the reports to their client in advance of instructing an expert, then the Court would order the exchange of reports. This undertaking was not offered and accordingly, the application was refused. The defendant appealed the decision to the CoA.

Court of Appeal 

In delivering the judgment, Mr Justice Noonan commented that 

“It is difficult to avoid the conclusion that there are significant shortcomings in the disclosure regime introduced by S.I. 391, as this case casts in stark relief.  As the 25th anniversary of the disclosure rules approaches, they would, I think, benefit from recalibration to take account of the issues thrown up by this and previous cases which consider them.  It may indeed be necessary to revisit s. 45 itself.”  

Mr Justice Noonan suggested the following approach should be adopted by the parties: 

  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 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 toward;
  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 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. 

The CoA specifically held that the above pathway was by “no means intended to apply in every personal injury action, or even every such claim involving professional negligence”. However, it is likely to be a roadmap which parties will utilise in personal injuries cases. In particular, point (vi) above is something that will give parties comfort where they have confirmed that they do not intend calling an expert to give evidence on a particular issue as per point (v). Following receipt of the other side’s expert reports, they  have the option to apply to the Court, “in the interests of justice”, for permission to call an expert in relation to an issue disclosed in the other parties expert reports.   

Hopefully by adopting the pathway suggested by the CoA, this will facilitate earlier exchange of expert reports.  In turn this will provide the opportunity to mediate or utilise other dispute resolution mechanisms to resolve cases at an earlier stage.  This will free up Court time and resources and avoid settlements on the eve of trial. It will be interesting to see how the Court assesses the “interests of justice” argument which will inevitably be made by both plaintiffs and defendants in personal injury and clinical negligence claims.