The Supreme Court allowed Aer Lingus Teoranta’s appeal in a dispute over whether it had to disclose an orthopaedic surgeon’s report after deciding not to call him as a witness. It set aside the High Court order requiring disclosure.
The case arose in a personal injury action brought by Maria Kincaid. Aer Lingus had listed a report by orthopaedic surgeon Mr Niall Mulvihill in its schedule of intended expert witnesses. Before exchanging the scheduled reports, the airline wrote to Kincaid on 18 April 2002 to say it no longer intended to call him and would not provide his report.
Kincaid argued that Aer Lingus could withdraw reliance on a scheduled report only after delivering it. The High Court accepted her position, finding that the disclosure rules were intended to ensure mutuality and transparency between the parties.
In a judgment delivered on 9 May 2003, Mr Justice Geoghegan rejected that interpretation. He said Rule 46(6) dealt with a report that had already been delivered and later withdrawn from use; it did not require a party to deliver a report before withdrawing reliance on it. The situation in this appeal was not expressly covered by the rule.
The court examined section 45 of the Courts and Court Officers Act 1995, which authorised rules requiring disclosure of specified information for personal injury trials. The judgment said the statutory categories concerned evidence intended for use at the hearing. Once Aer Lingus decided it would not call Mr Mulvihill, the report was privileged and the airline was not obliged to provide it.
The court said the purpose of disclosure was to prevent surprise evidence at trial, rather than to reveal the strengths and weaknesses of each side’s case. It also observed that contemporaneous exchange of scheduled reports by the parties’ solicitors would prevent the kind of tactical advantage Kincaid had raised. The ruling resolved the disclosure issue; the judgment did not determine the underlying personal injury claim.