Refusing Adjournment Where an Expert Becomes Unavailable: Proceeding on Existing Reports with a Waiver of Cross‑Examination in Competition Litigation

1) Introduction

ER Travel Limited v Dublin Airport Authority AKA DAA PLC concerns an interim, procedural issue arising mid-trial in long-running High Court competition proceedings (alleging abuse of dominance and concerted practice). ER Travel’s principal expert witness (an economist) became unexpectedly unavailable to give oral testimony. The Court (Barrett J) had already made an order under s.27 of the Civil Law (Miscellaneous Provisions) Act 2008 restricting publication or broadcast of material likely to identify the expert as having a particular medical condition.

The immediate question was how the trial should fairly continue: whether to adjourn so ER Travel could instruct a replacement economist, or to proceed on the basis of the expert reports already served (including a Joint Expert Statement), with the defendant offering to waive cross-examination of the unavailable expert.

Key parties

  • Plaintiff: ER Travel Limited
  • Defendant: Dublin Airport Authority AKA DAA PLC

Core issue

How should the Court balance (i) the plaintiff’s asserted prejudice in being unable to lead viva voce expert evidence in a competition case, against (ii) the disruption, cost, delay, and case-management consequences of re-opening the expert process in a trial already well advanced?

2) Summary of the Judgment

The Court refused ER Travel’s application for an adjournment to instruct a replacement economist. It directed that the trial should continue on the basis of the existing expert material already before the Court (written reports and the Joint Expert Statement). A significant factor was DAA’s stated willingness to waive cross-examination of ER Travel’s unavailable expert, which the Court held “goes a considerable distance” toward mitigating prejudice.

3) Analysis

A. Precedents Cited

(i) Royal Mail v. Ofcom [2019] CAT 19

DAA indicated it would rely on Royal Mail v. Ofcom [2019] CAT 19, where the Competition Appeal Tribunal declined to adjourn proceedings after an expert became unavailable, in circumstances where that expert had already participated extensively in the expert process (including “sequenced reports” and deeper engagement).

ER Travel sought to distinguish Royal Mail v. Ofcom [2019] CAT 19 on the facts: its expert had produced only one substantive report and had not had a proper opportunity to address criticisms in oral evidence; ER Travel argued the Joint Expert Statement did not cure that deficit.

While Barrett J did not undertake a detailed comparative exegesis of Royal Mail v. Ofcom [2019] CAT 19, the citation framed the dispute as a familiar case-management problem in expert-heavy litigation: whether the court should prioritise continuity and completion of an advanced trial over restarting/expanding expert evidence. The High Court’s resolution aligns with the general approach signposted by Royal Mail—reluctance to adjourn where doing so would cause substantial disruption and the trial can fairly proceed using existing expert materials.

(ii) Sweeney v. VHI [2021] IESC 58

ER Travel relied on Sweeney v. VHI [2021] IESC 58 for the proposition that competition claims are shaped in significant measure by expert economic analysis, and thus fairness required allowing a replacement economist to be called.

Barrett J accepted, in substance, that competition cases are expert-intensive and that ER Travel’s difficulty was “unfortunate” and outside its control. However, the Court treated that as only one side of the balance. The decision illustrates that even in competition litigation—where economic evidence is central—the absence of oral expert testimony does not automatically compel an adjournment, especially where there is (a) substantial written expert material and (b) a procedural accommodation (waiver of cross-examination) capable of reducing unfairness.

B. Legal Reasoning

The judgment is best understood as a structured exercise in procedural proportionality and modern trial management. The Court identified five reasons favouring continuation rather than adjournment:

  1. Duration and stage: the litigation had run nearly seven years and the trial was “well advanced”; completion without further interruption was given significant weight.
  2. Risk of disruption: a new economist could change or reframe market definition, theory of abuse, or analytic approach—potentially triggering pleadings amendments, additional discovery, further expert rounds, or recall of witnesses.
  3. Sufficiency of existing materials: the Court already had written reports and the Joint Expert Statement identifying agreement/disagreement.
  4. Mitigation of prejudice: DAA’s waiver of cross-examination was a major factor; it reduced the disadvantage to ER Travel from the expert’s absence.
  5. Case-management principles: proceeding avoided delay and expense and aligned with “modern case-management principles” favouring finishing trials where practicable and fair.

Importantly, the Court did not treat “no fault” on ER Travel’s part as decisive. The operative test was the interests of justice viewed in the round. Although ER Travel bore the burden of proof and argued it needed viva voce expert evidence to meet that burden, the Court found the resulting prejudice did not outweigh the countervailing systemic and case-specific considerations.

The decision also reflects an implicit distinction between (a) ideal presentation of expert evidence (written + oral) and (b) minimum fair evidential sufficiency in circumstances of unexpected witness unavailability. Barrett J held the latter threshold could be met here.

C. Impact

  • Adjournments in expert-heavy trials: the judgment strengthens the practical message that late-stage adjournments to replace experts will face a high hurdle, especially in long-running litigation and where a replacement would reopen procedural battlegrounds (pleadings, discovery, additional experts).
  • Written expert evidence can carry the case: courts may be prepared to determine complex disputes on the basis of written reports and a Joint Expert Statement, even where one side loses the ability to call its expert orally.
  • Waiver of cross-examination as a fairness lever: the decision signals that a party’s waiver of cross-examination can be a meaningful mechanism to preserve fairness and trial continuity when the opposing expert becomes unavailable.
  • Competition litigation case management: notwithstanding the centrality of economists (as emphasised by reliance on Sweeney v. VHI [2021] IESC 58), the High Court prioritised containment of disruption and timely completion where workable. Future litigants should expect robust control of expert processes, particularly once trial has materially progressed.
  • Confidentiality and witness welfare: the explicit reference to the s.27 order highlights that courts may combine procedural adaptation (how to proceed without an expert) with protective measures ensuring medical privacy.

4) Complex Concepts Simplified

Adjournment
A pause in the trial to a later date. Here, it would have been to allow ER Travel to hire a new economist and generate further expert materials.
Viva voce evidence
Live oral testimony in court, as opposed to written evidence.
Joint Expert Statement
A document prepared by opposing experts that identifies where they agree and disagree, often used to narrow issues and assist the court.
Waiver of cross-examination
A party gives up its right to question the other side’s witness. Here, DAA’s waiver reduced the forensic disadvantage to ER Travel arising from the expert’s absence (because ER Travel’s expert would not be attacked in live questioning).
Case-management principles
Court-driven control of procedure to ensure proceedings are efficient, proportionate, and fair—minimising unnecessary delay, cost, and complexity.
s.27 of the Civil Law (Miscellaneous Provisions) Act 2008
A statutory basis for restricting publication/broadcast of information to protect privacy (here, preventing identification of the expert as having a particular medical condition).

5) Conclusion

This interim judgment establishes a clear, pragmatic approach to expert unavailability mid-trial: where proceedings are long-running and advanced, and the court already has substantial expert documentation (including a Joint Expert Statement), the interests of justice may favour continuing the trial rather than adjourning to replace an expert—particularly where the opposing party offers a meaningful procedural accommodation such as a waiver of cross-examination.

Even in competition litigation, where economic evidence is central, Barrett J prioritised completion, proportionality, and avoidance of cascading procedural disruption, while recognising (but ultimately containing) the prejudice to the party bearing the burden of proof.