The High Court has refused an application by the Voluntary Health Insurance Board (VHI) to exclude Professor Moore McDowell as an expert witness for the plaintiffs in competition law proceedings. The court directed him to give an undertaking concerning confidential information previously received from VHI.
Mr Justice Max Barrett delivered the judgment on 28 May 2019. VHI asked the court to use its inherent jurisdiction to prevent Professor McDowell from acting for the plaintiffs. VHI had retained him on a non-exclusive basis in other contentious matters, including proceedings that involved similar claims about alleged abuse of a dominant position in decisions not to provide insurance cover.
VHI argued that its contract with Professor McDowell contained an implied term preventing him from acting for a party litigating against it on the same or similar matters. The court said it had little evidence about the terms of any agreement and accepted that a contract preventing a witness from giving evidence where the court considered it appropriate would be contrary to public policy.
The judge also considered the risk that Professor McDowell might use confidential or privileged information he had received while working for VHI. In an affidavit, the professor said he had no hard-copy documents from those proceedings, could find no confidential information on his computer, and had not used VHI material in preparing his draft report for the plaintiffs. The court said it had no reason to doubt his bona fides and found that VHI had not discharged its burden of proving he would misuse confidential information.
The judgment noted that Professor McDowell’s last involvement in the other proceedings was in May 2012, while his first consultation with the plaintiffs in this case was on 6 October 2017. VHI’s motion issued on 23 November 2018, more than a year after a solicitor’s call to the professor in November 2017 raised a question about his representation. The court said the delay could have counted against VHI in a closer application, but did not need to decide that issue.
The court also noted the plaintiffs’ solicitor’s evidence that the pool of economic experts in Ireland was relatively small and that hiring an expert from abroad would add substantially to costs. Having considered the legal principles, the evidence and the circumstances, the court refused VHI’s application. It directed Professor McDowell to give the undertaking proposed by the plaintiffs’ counsel. The judgment does not set out the undertaking’s wording.