The Court of Appeal has allowed the Voluntary Health Insurance Board Limited’s (VHI) appeal and ruled that Professor Moore McDowell could not continue as an economic expert for two plaintiffs challenging the VHI’s refusal to approve a proposed private hospital in Limerick.
The judgment, delivered by Mr Justice Maurice Collins on 9 June 2020, set aside a High Court order that had refused the VHI’s application to exclude Professor McDowell. The appeal concerned the expert’s role in the proceedings; it did not decide whether the VHI’s refusal to approve the hospital breached competition law. The court left consequential matters, including costs in both courts, for agreement between the parties or further determination.
The plaintiffs’ claim, begun in May 2015, alleges that the VHI holds dominant positions in private health insurance and in purchasing private medical services, and that refusing cover for the proposed hospital was an abuse of dominance under the Competition Act 2002 and/or Article 102 TFEU. The VHI denies the claims. The plaintiffs seek damages and declaratory relief, including a declaration that the hospital is entitled to VHI approval.
The dispute over the expert arose because Professor McDowell had also been retained by the VHI in two other competition cases concerning refusals to provide cover to private hospitals: proceedings involving a Dublin hospital and proceedings involving a Cork hospital. The Court of Appeal said the claims raised very similar issues, including the relevant product and geographic markets, dominance and whether the VHI’s reasons for refusing cover were justified.
The court accepted that Professor McDowell had received a significant volume of commercially confidential and privileged material from the VHI, including detailed instructions and information about its operations and litigation defence. His evidence that he no longer held copies, had not relied on VHI material in preparing the plaintiffs’ draft report and would not disclose confidential information was uncontested. The court did not question his integrity, but held that an undertaking could not sufficiently guard against inadvertent or subconscious use or disclosure.
It applied a “real risk” test, rather than requiring proof that disclosure was more likely than not. Given the amount and nature of the information and the overlap between the cases, the court found a real risk that the material could influence Professor McDowell’s work or be disclosed, including while giving evidence. It concluded that the High Court had applied the wrong test and had not properly engaged with the unchallenged evidence.
The Court of Appeal also rejected delay as a reason to refuse the application. It found that the VHI had raised its objection in a timely way and that the plaintiffs had not shown prejudice from the time taken to bring the formal application.