The High Court refused an application by the North Western Health Board to compel a third party to provide documents referred to in two expert reports, ruling that the documents did not fall within the category of material that must be exchanged under Order 39 of the Rules of the Superior Courts.
The dispute arose after the personal injuries action between Cheryl Doherty, a minor suing through her mother and next friend, Sara Doherty, and the Health Board had been disposed of. Issues remained between the Board and third parties. The Board’s motion sought documents from the first third party, Brian Davidson, under Order 39, Rule 46.
The first third party had supplied a schedule of intended expert reports and copies of reports by Professor E.M. Symonds and Dr Ian McKenzie. Those reports identified documents considered in their preparation. The Board sought those underlying documents; the first third party declined to provide some, claiming they were privileged.
The documents listed included correspondence involving Davidson, his solicitors and insurer, solicitors’ attendance notes, a draft statement, letters from other doctors, and two witness statements described as expert reports. The judge recorded that the latter were factual witness statements, not expert reports.
The judge did not decide whether any of the documents were in fact protected by legal professional privilege. Instead, he considered whether Rule 46 required their disclosure on the assumption that privilege otherwise applied. He concluded that it did not. The rule’s definition of a report included maps, drawings, photographs, graphs, charts, calculations and “other like matter” referred to in a report. Applying the same-category approach to that phrase, he found the disputed documents were not like those listed examples and therefore were not reports within the rule’s definition.
The court consequently found no obligation under Rule 46(1) to disclose or exchange the documents. The ruling did not determine whether they might have to be produced through discovery. The judge said he was willing to inspect documents for which privilege was claimed and decide that issue if asked; the judgment records no such determination or further order.