Interim Judgment Summary

Factual and Procedural Background

This interim judgment of Judge Barrett was delivered on 19th March 2026 in the High Court. The proceedings concern a long-running competition claim between the Plaintiff and the Defendant, including allegations of abuse of dominance and concerted practice. During the hearing the Plaintiff's principal expert (an economist) unexpectedly became unavailable to give oral evidence. The judge had previously made an order under s.27 of the Civil Law (Miscellaneous Provisions) Act 2008 prohibiting publication or broadcast of any matter likely to identify the expert as a person having a particular medical condition. The parties disputed whether the hearing should be adjourned to permit instruction of a replacement expert or should proceed on the basis of the existing written expert materials.

Legal Issues Presented

1. Whether the court should adjourn the trial to allow the Plaintiff to instruct a replacement economist to give oral expert evidence.
2. Whether the trial should proceed on the basis of the existing expert reports and Joint Expert Statement, with the Defendant waiving its right to cross-examine the unavailable expert.

Arguments of the Parties

Plaintiff's Arguments

• Counsel for the Plaintiff submitted an adjournment was necessary to allow fresh instruction of an economist; the unavailability arose suddenly and through no fault of the Plaintiff.
• The Plaintiff bears the burden of proof and would be prejudiced by being unable to call viva voce expert evidence or have its expert explain and defend his analysis.
• The Plaintiff distinguished Royal Mail v. Ofcom [2019] CAT 19 on the basis that, here, the expert had produced only one substantive report and had not had an opportunity to address criticisms in oral evidence; the Joint Expert Statement did not cure that difficulty.
• Any delay from instructing a new expert would likely be measured in months and manageable; fairness required allowing a replacement expert in a competition case where economic analysis is central (relying on Sweeney v. VHI [2021] IESC 58).

Defendant's Arguments

• Counsel for the Defendant accepted the circumstances were unfortunate but emphasised the proceedings had been ongoing for almost seven years and the need to conclude expeditiously.
• The Defendant proposed two options: adjourn for a new expert (which would risk significant disruption) or proceed on existing expert materials with the Defendant waiving cross-examination; the Defendant favoured the latter to avoid delay and expense.
• Any prejudice to the Plaintiff was mitigated by the Defendant's waiver of cross-examination and by the existence of the Joint Expert Statement setting out areas of agreement and disagreement.
• The Defendant reserved the right, if required to incur further costs by reason of an adjournment, to revisit security for costs and wasted costs at a later stage.

Table of Precedents Cited

Court's Reasoning and Analysis

The judge framed the decision around whether the interests of justice favoured an adjournment to permit a replacement economist or proceeding on existing materials. The court identified and weighed five principal considerations:

1. Duration and stage of the proceedings: the matter had been pending for almost seven years and the trial was well advanced, so the orderly continuation and completion of the hearing merited significant weight.
2. Potential disruption from a new expert: a newly instructed economist could prompt changes to market definition, theory, pleadings, discovery or recall of witnesses, risking substantial procedural disruption in a competition case shaped by economic analysis.
3. Existing expert material: the court already had the written expert reports and a Joint Expert Statement identifying areas of agreement and disagreement between the economists.
4. Mitigation of prejudice: the Defendant's offer to waive cross-examination of the unavailable expert materially mitigated the Plaintiff's prejudice from absence of oral evidence.
5. Case-management considerations: proceeding on the existing material avoided delay and additional expense and aligned with modern case-management principles favouring trial completion where practicable and fair.

The court acknowledged the Plaintiff's difficulty and accepted the unavailability was unfortunate and outside the Plaintiff's control, but concluded that the prejudice to the Plaintiff did not outweigh the countervailing factors favouring continuation. The court also noted the Defendant's position that, if an adjournment were ordered, the Defendant would seek liberty later to revisit security for costs and any wasted costs arising from the adjournment.

Holding and Implications

The court ordered that the trial proceed on the basis of the existing expert reports and Joint Expert Statement, with the Defendant waiving its right to cross-examine the unavailable expert.

Implications: The direct effect is that no adjournment was granted and the hearing will continue without viva voce evidence from the Plaintiff's principal economist. The court recognised the Plaintiff's prejudice but found it insufficient to justify interruption. The opinion does not purport to establish a new legal precedent beyond its application of case-management principles to the facts of these proceedings.