Sweeney & anor v The Voluntary Health Insurance Board Ireland & ors

Factual and Procedural Background

The Voluntary Health Insurance Board Ireland ("Defendant") sought an order under the court's inherent jurisdiction to exclude Professor Expert as an expert witness for the Plaintiffs in competition law proceedings. Professor Expert had previously been retained non-exclusively by the Defendant since at least 2003 in similar contentious matters, including ongoing related litigation ("Other Proceedings"). The Plaintiffs alleged that the Defendant abused a dominant position by refusing to provide insurance cover, claims similar but not identical to those in the Other Proceedings. The Defendant contended that Professor Expert's prior involvement with confidential information from these Other Proceedings created a conflict.

Professor Expert filed an affidavit denying misuse of confidential information and affirmed compliance with duties as an independent expert. Key dates include the last involvement of Professor Expert in the Other Proceedings in May 2012, the issuance of the plenary summons in the current proceedings in May 2015, the first consultation between Plaintiffs and Professor Expert in October 2017, and the Defendant's motion to exclude Professor Expert in November 2018.

Legal Issues Presented

1. Whether Professor Expert should be excluded as an expert witness due to prior receipt of confidential and privileged information from the Defendant in related proceedings.
2. The extent to which confidentiality obligations and legal professional privilege restrict an expert witness from acting for opposing parties in similar litigation.
3. Whether an implied contractual term can prevent an expert witness from acting against a former instructing party in similar matters.
4. The burden of proof required on the Defendant to establish likely misuse of confidential or privileged information by the expert.
5. The application of public policy principles concerning the independence of expert witnesses and the absence of proprietary rights over witnesses.

Arguments of the Parties

Defendant's Arguments

• Professor Expert had previously received highly confidential, privileged, and commercially sensitive information from the Defendant in connection with related proceedings.
• It was implied in the contract with Professor Expert that he would not act as an expert witness for parties litigating against the Defendant in similar matters.
• There was a risk that Professor Expert could not avoid resorting to privileged material, justifying exclusion under the court's inherent jurisdiction.

Plaintiffs' Arguments

• Professor Expert denied using any confidential or privileged information received from the Defendant in preparing his report or giving evidence in the current proceedings.
• There was a significant time gap (5½ years) between Professor Expert's last involvement with the Defendant and his engagement by the Plaintiffs, reducing any risk of misuse of confidential information.
• The Defendant had not discharged the burden of proof to show that Professor Expert would misuse confidential or privileged information.
• Implied contractual restrictions preventing expert testimony would be contrary to public policy and unenforceable.
• Requiring the Plaintiffs to engage a different expert would impose significant costs and prejudice due to the limited pool of economic experts in the jurisdiction.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the factual chronology, noting a significant lapse of time between Professor Expert’s prior involvement with the Defendant and his engagement by the Plaintiffs, reducing the likelihood of reliance on confidential information. It accepted the expert’s sworn undertakings that no confidential or privileged information was used in the preparation of his report or evidence. The court applied established legal principles from Irish and UK precedent, emphasizing that expert witnesses owe their primary duty to the court, not to any party, and that no contract can validly restrict an expert’s ability to testify.

The court rejected the Defendant’s argument for an implied contractual term preventing Professor Expert from acting against it, citing public policy concerns and the absence of sufficient evidence to imply such a term. The court also noted the Defendant had not discharged the burden of proof to demonstrate that Professor Expert would misuse confidential information. It considered the limited pool of experts in the jurisdiction and the potential prejudice to the Plaintiffs if forced to retain a foreign expert, weighing this against the Defendant’s delay in bringing the application.

Ultimately, the court found no basis to exclude Professor Expert but directed that he provide an undertaking to protect confidentiality as a precaution.

Holding and Implications

The court REFUSED the Defendant's application to exclude Professor Expert as an expert witness in the competition law proceedings.

This decision permits the Plaintiffs to continue to rely on Professor Expert’s evidence, avoiding additional costs and delay associated with appointing a new expert. The ruling reinforces the principle that expert witnesses owe an overriding duty to the court and that prior engagements do not automatically disqualify experts absent a clear risk of misuse of confidential information. No new legal precedent was established; rather, the court applied and affirmed existing principles consistent with public policy and procedural fairness.