The Court of Appeal has dismissed an appeal by Clinical Pathology Laboratories Incorporated (CPL) seeking to compel a woman bringing a CervicalCheck clinical negligence claim to disclose her expert reports before CPL had corresponding reports to exchange.
The plaintiff, Joan O’Flynn, had a cervical smear test on 20 October 2010 through the National Cervical Screening Programme. She alleges that her sample was negligently analysed and reported as normal when it was abnormal, causing personal injuries. The judgment records a further allegation that the defendants failed to disclose information about a later review of the smear. These remain allegations; the appeal concerned disclosure procedure, not whether negligence occurred.
The proceedings began in November 2018. The Court of Appeal noted that the negligence particulars were general and did not specify the acts or omissions said to amount to misreading the sample. CPL had not sought detailed negligence particulars, but argued that it needed the plaintiff’s reports to understand the case and avoid surprise at trial. It offered an undertaking that the reports would not be given to its experts until they had produced their own reports.
The plaintiff resisted disclosure on those terms, arguing that CPL wanted to assess her case before deciding what experts to instruct. The High Court refused CPL’s application, concluding that the proposed undertaking would not adequately address the risk of unfair advantage in the circumstances.
In a judgment delivered on 1 April 2022, Mr Justice Noonan said a defendant that considers a claim insufficiently particularised can seek particulars and apply to court if they are not provided. Expert reports are evidence, he said, and should not be used as a substitute for pleadings. He also found that CPL’s expertise and resources meant it could assess the plaintiff’s reports and respond to them even while complying with its proposed undertaking.
The court dismissed CPL’s appeal. It set out an approach for managing expert disclosure in this case, including identifying intended experts and their fields, aiming for simultaneous exchange, and using like-for-like exchange as reports become available where simultaneous exchange is not possible. The judgment said further court applications may be needed for genuine disputes and allowed either party to withdraw an expert from its schedule.
The court’s provisional view was that the plaintiff should receive her costs, subject to CPL’s right to request a further hearing on costs within 14 days. The matter was listed for mention on 25 April 2022 so the parties could address the proposed approach before the final order was perfected. The judgment did not determine the underlying negligence claim.