The Supreme Court has dismissed an appeal by Shay Sweeney and The Limerick Private Limited against an order excluding economist Professor Moore McDowell from giving evidence for them in their competition case against the Voluntary Health Insurance Board Ireland (VHI).
In a judgment delivered on 9 September 2021, the Court upheld the Court of Appeal’s decision. It found a “real and sensible risk” that confidential and privileged information McDowell received while advising the VHI in two earlier, closely similar cases could be disclosed if he advised and testified for the appellants.
The underlying High Court action concerns the VHI’s refusal to provide cover to customers of a proposed private hospital in Limerick. Sweeney and the company allege that the refusal amounted to abuse of a dominant position, contrary to EU and Irish competition law. The Supreme Court appeal concerned only whether McDowell could act as their expert; it did not decide the underlying competition claim.
McDowell had previously worked for the VHI in proceedings concerning proposed hospitals in Cork and Dublin. The Supreme Court said the cases had substantial overlap in their legal and factual issues and in the relevant period. It also described the economist’s role in competition litigation as involving close, continuing work with a party’s lawyers and client, including consideration of litigation strategy and confidential information.
The Court rejected the appellants’ argument that exclusion should require proof, on the balance of probabilities, that disclosure was likely. It held that the party seeking to exclude an expert must establish a real and sensible risk of disclosure, with the expert’s level of involvement in the earlier case relevant to that assessment. The Court also said confidential information should be identified with some specificity where possible, but that detailed identification is not an absolute requirement where the concern is broad exposure to a party’s approach to litigation.
The Supreme Court said its conclusion did not reflect adversely on McDowell’s honesty or independence. It limited its decision to the risk of disclosure of confidential and privileged information in the circumstances of this case, and did not determine broader questions about an expert’s fiduciary duties or conflicts of interest.
The appeal was dismissed, leaving the Court of Appeal’s exclusion order in place. The High Court had earlier refused the VHI’s application, but the Court of Appeal allowed it. The judgment does not determine the merits of the appellants’ competition action.