The Supreme Court has ordered the Voluntary Health Insurance Board Ireland (VHI) to recover its costs of a dispute over a proposed expert witness, while staying enforcement of the costs order until the underlying litigation is determined in the High Court.
The ruling on costs was delivered by Chief Justice O’Donnell on 10 November 2021. The court ordered VHI to recover its costs of the High Court hearing, the Court of Appeal proceedings and the appeal to the Supreme Court. It directed that execution on the order be stayed pending determination of the substantive case in the High Court.
The underlying proceedings concern an allegation by the plaintiffs, who are proprietors of or participants in a private hospital, that VHI abused its dominant position by refusing to cover procedures carried out there. The costs ruling concerned a separate dispute about an expert witness retained by the plaintiffs who had previously acted for VHI in similar litigation brought by other private hospitals.
VHI applied to exclude the expert. The High Court refused that application, but the Court of Appeal granted the order, and the Supreme Court upheld the Court of Appeal’s decision.
The plaintiffs argued that VHI was not entirely successful because the Supreme Court did not adopt the test from *Prince Jefri Bolkiah v KPMG*, instead preferring a formulation used in Australian cases requiring the applicant to show a “real and sensible risk” of disclosure. They also argued that the issue was novel and of public importance, justifying departure from the usual rule that costs follow the event. They asked the Supreme Court to set aside the Court of Appeal’s costs order and require VHI to pay the plaintiffs’ costs at all three court levels.
VHI argued that it had succeeded in obtaining the order it sought and that the plaintiffs had unsuccessfully argued for a different test. It also relied on the parties’ agreement in the Court of Appeal that VHI would recover the High Court and Court of Appeal costs, with enforcement stayed pending the outcome of the High Court litigation.
The Supreme Court said there was no basis to require a successful party to pay the unsuccessful party’s costs in this private commercial litigation. It concluded that the Court of Appeal’s arrangement best served the parties’ interests: VHI would recover its costs, but could not enforce the order until the substantive High Court case is determined.