The Supreme Court has dismissed Denis O’Leary’s appeal in a medical negligence case, finding insufficient evidence that fees paid to two defence medical experts compromised their independence or made his High Court trial unsatisfactory.
Mr O’Leary had sued Mercy University Hospital Cork Limited and Khalid M. Ali Chiad Al-Safi over his treatment. The High Court dismissed his claim after a 21-day hearing in 2010, and the Court of Appeal dismissed his appeal in 2018. The Supreme Court’s consideration was limited to whether the experts’ remuneration raised a serious question about their independence, and what consequences, if any, followed. It also considered his concern that the experts received overnight transcripts.
After the High Court case, the State Claims Agency, which indemnified the defendants, submitted a bill of costs totalling €518,291.51. The bill initially included €57,705.60 for expert medical witnesses; that claim was later reduced to €48,000. A costs accountant for Mr O’Leary described several charges as unusual, including a €27,230 total paid to one consultant and €9,000 for another consultant’s three days in court. The accountant also questioned charges for reviewing transcripts.
The respondents’ solicitor disputed that the fees influenced the experts, and an accountant supporting the respondents said transcripts helped the experts follow the complex case. The Court noted that the fees had not been agreed before the High Court hearing, calling that unusual and undesirable, and said expert fees should generally be fixed in advance. But it held that the size of the fees, on its own, did not establish a conflict of interest. Mr O’Leary had not shown a connection between the fees and any particular part of the experts’ testimony that might have been affected.
The Court also rejected the argument that providing overnight transcripts showed a lack of independence. It said experts could reasonably be kept informed as a case developed. It distinguished the test for objective bias applied to judges and other decision-makers from the question whether an expert had departed from the duty of independence owed to the court. A serious departure could reduce the weight of evidence or, in a serious case, make it inadmissible; the Court found the evidence here did not meet that threshold.
The Supreme Court did not order a plenary hearing to investigate the allegations. It concluded there was no sufficient basis to find that the High Court trial was unsatisfactory or that the expert evidence should have been excluded or given less weight. It dismissed the appeal and upheld the Court of Appeal’s decision. The underlying High Court dismissal of Mr O’Leary’s medical negligence claim therefore remained in place.