THE SUPREME COURT
Record Number: 57/18
Clarke C.J. O'Donnell J. MacMenamin J. O'Malley J. Finlay Geoghegan J.
DENIS O'LEARY
- and -
MERCY UNIVERSITY HOSPITAL CORK LIMITED
AND KHALID M. ALI CHIAD AL-SAFI
DEFENDANTS/RESPONDENTS
JUDGMENT of Mr. Justice MacMenamin delivered on the 31st day of May 2019
Introduction
1. Expert witnesses have played an important role in court proceedings since the earliest evolution of the common law. Such witnesses are often essential in assisting courts when reaching a conclusion on complex issues, whether they arise in a personal injury action, a commercial case, or a patent proceeding. However, there are, unfortunately, occasions when expert witnesses do not always appreciate their fundamental duty of independence and impartiality. Their primary duty is always owed to the court and not to their client or the person who retains them. The cost of obtaining expert testimony can form a significant component in overall litigation expenses. What may not always be clear, is that some cases where the ultimate outcome will be clear-cut actually come as far as the courtroom because of what are called "hired gun" witnesses on one side or the other. Quite often the deficiencies in the testimony of such witnesses are discovered only at the door of the court or in the hearing itself, by which time the parties may have incurred significant costs. This problem not only concerns private litigants and their advisers. At a time when litigation and insurance costs are a source of public concern, these problems can have a broader impact on the public. Prudent lawyers, acting in the interests of their clients, will always ensure that the expert testimony they seek to adduce will stand up to scrutiny in court. Sometimes, however, as in this case, there is a conflict of expert evidence. In this appeal, the appellant alleges that there was a conflict of interest in his High Court case derived from the level of the respondents' witnesses' remuneration, He says this created a perception of objective bias which should have rendered the respondents' witnesses' evidence inadmissible, or of little weight, thereby rendering the High Court action, in which he was plaintiff, unsatisfactory. As this judgment seeks to make clear there is a real distinction between the test for objective bias applicable to a judge or decision maker and on the other hand the duties of an expert witness to maintain independence and impartiality
2. The appellant brought medical negligence proceedings against the respondents which resulted in a 21-day hearing. In a judgment delivered in the High Court by Quirke J. on the 20th May, 2010, the proceedings were dismissed ([2010] IEHC 211). Mr. O'Leary appealed this decision. Subsequent to the High Court case, the appellant was furnished with the respondents' bill of costs. He claims this step was taken to force him into abandoning his appeal. The bill included claims for fees and outlay in defence of the claim. It came to a total of €518,291.51. Of this, the State Claims Agency, the defendants' indemnifier, claimed expert medical witnesses' fees in the sum of €57,705.60 The agency also claimed fees for taking an overnight transcript in the sum of €47,979.14. The appellant's solicitors sought particulars of the claim for the expert witnesses' fees. The claim was subsequently reduced somewhat to €48,000. The appellant alleges that, when analysed, the fees charged by two doctors who gave expert evidence for the respondents were so unusually high as to indicate a conflict of interest or what has been characterised in this appeal as ‘objective bias', such as to call the entire High Court hearing into question and to render the trial of the action unsatisfactory.
3. The steps which are now outlined were taken prior to the establishment of the Court of Appeal, at a time when appeals from the High Court lay directly to this Court. The bill of costs was, therefore, furnished when the appeal was pending before this Court. Counsel for the appellant brought a motion to this Court seeking to introduce the details of the doctors' charges as additional evidence. He submitted that these fees were not known at the time of the High Court trial, and had they been known, the details of the charges would have been deployed in an application to have the testimony of the two doctors rendered inadmissible. Counsel submits such an application would have succeeded. It is said now there was an inequality of arms in the trial, thereby giving rise to a denial of the right to equality before the law under Article 40.3 of the Constitution, the right to a fair trial pursuant to Article 6(1) of the European Convention on Human Rights ("ECHR"), and the right to an effective remedy as set out in Article 13 of the ECHR.
4. The appeal was subsequently remitted to the Court of Appeal after its establishment. On the 12th March, 2018, Peart J. delivered judgment on behalf of that Court (Ryan P., Peart J. and Whelan J.) dismissing the appeal on all grounds ([2018] IECA 94). The appellant applied for leave to appeal to this Court.
5. The appellant's application for leave to appeal to this Court sought the reversal of the entire decision of the Court of Appeal. But many of the issues before the High Court were findings on matters of fact, which were within the province of the trial judge to determine ( Hay v O'Grady [1992] I I.R. 210). The determination of this Court was therefore was confined to one single issue; that is, whether the remuneration of the respondents' witnesses raised a serious question as to their independence. In acceding to the application, this Court observed that the issues sought to be raised might have been more appropriately brought in plenary proceedings where the facts could be explored in more detail, and where the witnesses would have had an opportunity to defend themselves. The issues which this court must address are whether, as the appellant contends, the level of remuneration paid, actually did create a conflict of interest with the consequence that the witnesses were ‘objectively biased', the consequences said to flow from any such conclusion, and whether, as the appellant also contends, the fact that the witnesses were provided with overnight transcripts also indicated they had failed in their duty of independence.
6. It will be noted that the High Court proceedings predated the introduction of Order 39, Rule 57 of the Rules of the Superior Courts, 1986 as inserted by the Rules of the Superior
Courts 2016 (S.I. Nos. 254 and 255). These instruments both specified certain duties and obligations of expert witnesses in various categories of case. But these do not derogate from the general duties owed which are described later in this judgment. It will also be recalled that, on the 18th January, 2017, the Law Reform Commission launched a comprehensive report entitled, " Consolidation and Reforms of Aspects of the Law of Evidence " (LRC 117-2016; "the Report"). Having set out many of the problems which have arisen regarding this type of testimony in court cases here and elsewhere, the Report proposed that the duties of expert witnesses should appropriately be readdressed, again laying emphasis on the fundamental duty of such witnesses. The Report made a series of valuable recommendations, designed to avoid the risk that an expert might be seen as over-partisan in favour of the party engaging him or her. It sets out a helpful list of the main duties of such witnesses, and addresses many issues raised in the previous Law Reform Commission, Consultation Paper on Expert Evidence (LRC CP 52-2008).
The Nature of the Claim
7. The appellant, a single man in his early 50s, claimed damages against the respondents for medical negligence in his treatment by the first respondent itself ("the hospital") and the second named respondent (Mr. Al-Safi) who was a locum consultant urological surgeon then employed by the hospital. The appellant was suffering from urological problems and attended the hospital on the 2nd January, 2002. He contended that in the earlier phase of treatment, there was a failure to diagnose a deterioration in his left kidney in time to adopt remedial measures. But Quirke J. held that as a matter of probability even by that stage, the appellant's kidney had no recoverable function. There was a further aspect to the claim, to the effect that the appellant should not have undergone what is termed augmentation cystoplasty surgery. The second named respondent later carried out this procedure on the appellant, on the 16th May, 2006. Four English medical witnesses were called on behalf of the appellant in the High Court action. Their contentions were that the procedure was not warranted, that Mr. Al-Safi was insufficiently qualified, and that the appellant should have been informed about other possible procedures, such as substitution cystoplasty or urinary diversion by ileal conduit. However, in particular, two Irish medical witnesses called by the respondents testified unequivocally that the appellant's condition did warrant augmentation surgery and that, in the circumstances, there was no duty to advise him of any alternative procedures. There was evidence that Mr. Al-Safi was sufficiently qualified. The appellant also claimed that Mr. Al-Safi had not sufficiently warned him as to the risks or hazards of the procedure. The expert witnesses on both sides gave evidence as to the nature and extent of the warnings which should appropriately be given in order to ensure there was informed consent. But in fact, the consent issue turned on a question of credibility. Quirke J. concluded that the appellant was not a reliable witness as to what had taken place in his meetings with Mr. Al-Safi. He observed that Mr O'Leary's sister, who the appellant said in court was an eye-witness, had not given corroborative evidence in support of his case that he had not been adequately informed of the risks of the procedure. By contrast, he considered that Mr. Al-Safi was both a careful and competent witness, and accepted his testimony as to the advices that he had given. He held that the appellant had been fully warned on the basis of Mr. Al-Safi's testimony and had been made aware of the risks inherent to the procedure. These findings were upheld by the Court of Appeal in its judgment delivered on the 12th March, 2018.
The Witnesses' Remuneration - The Court of Appeal
8. Speaking for a unanimous Court of Appeal, Peart J. dealt with the question of the remuneration of witnesses in some detail in his judgment. He set out the sequence of events leading to the appellant becoming aware of the medical witnesses' charges. The judgment describes the evidence which was adduced by both sides in relation to the remuneration. This is described later in more detail. Peart J, adverted to the fact that a costs accountant engaged by the appellant to express a view on the medical fees, had stated on affidavit that their size was "unusual", and that, in his extensive experience of taxing bills of costs, he had not come across fees of that scale before. Having outlined the appellant's concerns, Peart J. went on to define the appellant's case as being to the effect that the scale of the fees was such as to have "clouded the experts' objectivity", and that "without putting a tooth in it", the allegation was that the witnesses' support for the defendants' case in the proceedings had been "bought". The judgment made no criticism of the fact that the expert witnesses had been furnished with a transcript of the evidence on each day so as to keep up with the testimony. Counsel had criticised this on the basis that it was inappropriate for an independent and objective expert to "enter into the adversarial arena" and "advise" a party who instructed him or her as to their litigation strategy. Peart J rejected this submission, and also rejected counsel's contention that this was a form of "prepping" an expert witness, thereby enabling them to tailor their evidence to meet the case made by the appellant during the hearing. Peart J. also outlined what was contained in affidavits sworn on behalf of the State Claims Agency defending the conduct of the two doctors. In fact, he observed that it was desirable that expert witnesses should know what is said on all sides.
9. Turning to the allegation of objective bias, Peart J. said that what was being contended for was in fact an accusation of unprofessional conduct; to the effect that the experts had given false or misleading evidence under oath, tailored to suit the case being made by the instructing principals. He was of the view that the issue was not suitable to be dealt with on appeal after the case had been concluded at first instance, bearing in mind that the doctors had no opportunity to address the matter on appeal. The appeal was dismissed on all counts.
10. By coincidence however, the issue of the fees charged in this case by the two doctors arose in another High Court action: Michael O 'Driscoll (a minor suing by his next friend Breda O 'Driscoll) v. Michael Hurley and the Health Service Executive (20th February, 2013; O'Neill J.), a case heard subsequent to the bill of costs being furnished. Counsel for the appellant also appeared as counsel for the plaintiff in O'Driscoll . During the course of that action, he cross-examined one of the same medical witness as to the fees he had intended to charge in that case. When the High Court judge asked counsel if he was suggesting that the fees being paid to Mr. Lanigan, one of the consultants, were a bribe and that the witnesses' evidence had been bought, counsel declined to go that far, but submitted that where large sums of money were paid, witnesses were required "to go the extra mile". As a matter of fairness, it is important to outline what Mr. Lanigan said in the O'Driscoll action in standing over his fee of €19,588 which he had charged in Mr O'Leary's case, He described having to spend two hours each night over a period of three weeks reading transcripts sent to him by email. He said that he read these because he was asked to do so, and felt it necessary in order to defend his position against the plaintiffs' expert witnesses, and such questioning as counsel may put to him. Mr. Lanigan testified that he spent three entire days attending the hearing of the High Court and that the fees charged were in line with what he had agreed in advance with the State Claims Agency. In the O'Driscoll case, Mr. Lanigan had agreed a fee of €5,000 per day for attendance at the High Court. The High Court judge hearing that case ruled that, so far as he was concerned, any further pursuit of the matter in cross-examination was a waste of time unless there was something else emerging from it. Counsel indicated he did not have evidence to tender the matter and would therefore move on. It emerged that in fact there was no agreement in relation to the witnesses' fees prior to Mr. O'Leary's case being heard in the High Court. In my view, such agreement is highly desirable and would avoid providing grounds for impugning a witness on the basis of conflict of interest.
11. The Court of Appeal (Ryan P, Irvine and Hogan JJ.) in O 'Driscoll ([2015] IECA 158) rejected counsel's submission that he should have been given a further opportunity to cross-examine Mr. Lanigan on the basis that he was not impartial, and that the fees were "egregiously extravagant" and "wildly above" anything the State Claims Agency could have been expected to pay. In effect, counsel's case was that the doctor had become an advocate for the defendants, and that the fees at the level charged and agreed, were calculated to, or could introduce, a conflict of interest. His submission was that by agreeing to pay such fees, the Agency was inciting the witness to give partisan evidence. It is fair to say that there was a considerable lack of understatement in many of these criticisms.
12. Delivering judgment in the O'Driscoll appeal, Irvine J. criticised the possibility that an expert's professional reputation might be treated as a disposable and worthless commodity and observed that such witnesses should not be allowed to become an open target for unrestricted questioning of a damning nature. She went on to hold that questions designed to tarnish the reputation of witnesses by reference to the level of fees charged should only be permitted where the party challenging the witness could state that it was their intention to call expert evidence to prove that the fees under scrutiny were exorbitant to the point that, in all the circumstances, the Court should consider that the validity or weight of the evidence to be in doubt.
13. The judgment in O'Driscoll has some bearing on the instant case, as in O'Driscoll , although making an allegation of objective bias and conflict of interest, counsel did not direct this Court's attention to any specific part of the evidence which he claimed resulted from partiality or want of independence, or any specific issue where the want of either, as opposed to difference of opinion, might have arisen. Counsel based his case rather on the proposition that the nature and extent of the charges as allowed and paid in that case created the reasonable apprehension of conflict of interest, or what was characterised as objective bias. Whether objective bias could be the test for assessing conflict of interest for expert witnesses is addressed later in this judgment.
Recent United Kingdom Case Law
14. Issues concerning such witnesses are likely to become increasingly prevalent, not least as a result of the international nature of some types of litigation. While not cited, some recent case law in the neighbouring jurisdiction illustrates the breadth of the issues which can arise.
In the not entirely dissimilar case of Toth v. Jarman [2006] EWCA Civ 1028, the Court of Appeal of England and Wales (Potter P., Arden and Wall LJJ.) held that a court may conclude that a relationship between a party and an expert was so very close, to the extent that the expert's evidence should not be admitted. Similar views are to be found in the English High Court judgment in Liverpool RC Trustees v. Goldberg (No.3) Ch. Div. 2001 WLR 2237.
15. The judgment of the Court of Appeal in EXP v. Dr. Charles Simon Barker [2017] EWCA Civ 63 illustrates that conflict of interests involving experts are not confined to the question of financial or economic interest in the outcome of a case. Irwin L.J.' s judgment lucidly sets out the circumstances of a case where there had been an undisclosed close professional and social connection between the appellant, a doctor, and his principal expert witness, which neither party had declared. The judgment records that the trial judge concluded that, in fact, "steps had been taken" both in the curriculum vitae of the doctor and his expert witness which might have had the effect of avoiding the possibility of such connection might emerge. (paras. 23-28). The appeal judgment describes the appellant's significant connections with the expert witness, an eminent neuro radiologist over many years, from training onwards. This had led the trial judge to seriously consider entirely excluding the expert witness's evidence from the trial, although he decided not to adopt that course (para. 29). Nonetheless, what occurred significantly affected the weight which the judge was prepared to attach to his evidence (para. 32). Significantly, the judgment describes a number of specific medical issues where expert opinion was highly material to the outcome and where, in the case of a conflict, the question of weight to be given to such expert testimony would have been a strong consideration.
A Recent Irish Case
16. Closer to home, in the recent High Court judgment of Kenneally v De Puy International Limited [2016] IEHC 728; [2017] 2 487, Barton J. considered the issue of a witness having financial interest in the outcome of the case. In Kenneally , the plaintiffs expert witness was involved in what was known as " qui tam " legislation in analogous United States proceedings regarding what were alleged to be defective artificial hip replacements. Success in the United States litigation might have led to a substantial financial benefit for the expert witness. Having considered the issue in detail, Barton J. ruled that his evidence should be admitted, but warned that the survival of a challenge to the admissibility of expert evidence in an application to exclude it was not a predictor of the weight which was likely to be given to the evidence at the trial.
The Status of Expert Witnesses in Court
17. Against this background it is necessary to re-emphasise why the issue before the Court has some importance, and why the duties of expert witnesses require clear identification and definition. Other earlier case law acts a reminder of the distinction between a witness as to fact in contrast to an expert witness. The first is a witness who may not express an opinion with regard to the matters in issue between the parties. Rather, such a witness may testify only as to the existence of facts of which the witness has actual knowledge or experience. By contrast, an expert witness may express opinions in respect of such facts (see AG (Ruddy) v. Kenny [1960] 94 ILTR 185 at p.190 In Ruddy , Kingsmill Moore J. explained the reasons for this distinction as including prejudice, faulty reasoning and inadequate knowledge. As experts, such witnesses enjoy a degree of latitude with regard to the general rules on admissibility of evidence for the purposes of assisting the court and finding and drawing inferences of fact in relation to matters which are not, and cannot be expected to be, within the experience of the fact finder, whether that be a judge or jury. The judgments in Ruddy identify the areas of expertise as being ones where there may be special study or experience required in order that a just opinion be formed, as in, for instance, "matters of art, science, medicine, engineering and so forth" (per Davitt P.). In Flynn v. Bus Atha Cliath [2012] IEHC 398, Charleton J. in the High Court drew attention to the fact that the entitlement of an expert to express an opinion was predicated upon informing the court of the factors which made up that opinion, and supplying the court with the elements of knowledge which study and experience had furnished, and which formed the basis of the opinion, so that, in the circumstances, the court may be enabled to take a different view to theirs (para. 9). As Charleton J. commented, experts are privileged by being able to express a view relevant to the issue before the court because of the unusual nature of their status and enables them to express a view; sometimes, but not in every case, on and matters relevant to those upon which the case may turn (para. 9). In short the role of such witnesses can be of great importance in assisting a court determine the outcome of any case; the more important the role the higher the duty of independence. Ultimately the judge, and the judge alone, must make the decision.
Recent Irish Case Law where Expert Witness Issues Have Also Been Considered
18. The duty of such witnesses has been considered in recent jurisprudence in this state, including Emerald Meats v Minister for Agriculture [2012] IESC 48, where O'Donnell J. highlighted the advantage of experts meeting before the trial to identify issues truly in dispute (see, further, the judgment of this Court in Wright and Anor v. AIB Finance and Leasing and Ors. [2013] IESC 55 (Clarke J.), the judgment of the Court of Appeal in Donegal Investment Group Plc v. Danbywiske [2016] IECA 193 (Finlay Geoghegan J.), the High Court judgment of James Elliott Construction Limited v. Irish Asphalt Limited [2011] IEHC 269 (Charleton J.), and Weavering Macro Fixed Income Fund Limited v. Global Investment Services (Europe) Limited [2012] IEHC 25. See also, Declan MacGrath, Evidence 2nd edn, Round Hall 2014; John Healy, Medical Malpractice Law (Round Hall 2009: Chapters 11.20-11.24); and particularly the Law Reform Commission Report cited at para. 6 above, where instances in a number of other recent High Court cases are described in which judges have had occasion to seriously criticise expert witnesses whose testimonies fell far below the standards a court is entitled to expect (see chapters 8.215 8.22 and 8.23).
More Recent Jurisprudence in England and Wales
19. Reference may also be made to Anglo Group Plc. v. Winther Browne and Co. Ltd and
Anor. [2000] All ER (D) 294 and, earlier, Whitehouse v. Jordan [1981] 1 WLR 246 at p. 256; Stanton v, Callaghan [2000] QB 75, and, more recently, the English High Court in Armchair Passenger Transport Ltd v. Helical Bar Plc. [2003] EWHC 367. Hodge M. Malek et al. (eds), Phipson on Evidence (19th edn., Sweet and Maxwell 2018) at p. 1201, para. 33-30 is especially helpful.
Expert Medical Witnesses—The Medical Council
20. Also, and more directly relevant to this case, the Medical Council has published a helpful guide to professional conduct and evidence relevant to doctors preparing expert reports (Medical Council, Guide to Professional Conduct and Ethics for Registered Medical Practitioners (8th edn, 2016). That guide requires doctors to avoid conflicts of interest (para. 5.8) and to prepare reports that adhere to the normal standards of professionalism and that are specific, up to date, relevant, factual and true (para. 40.2).
Cases Where Remuneration is Not Guaranteed
21. In the English case of R ( Factortame Limited and Ors.) v. Secretary of State for Transport, Local Government and the Regions (No.8) [2003] QB 381, Lord Phillips M.R. addressed conflicts of interest, reiterating the oft-stated principle that it is desirable that an expert should have no actual or apparent interest in the outcome of proceedings in which he gives evidence, although pointing out that such interest was not automatically preconditional to the admissibility of such evidence. He pointed out that where an expert has an interest of one kind or another in the outcome of a case that fact should be made known to the court as soon as possible. I agree on both points.
Procedure
22. I would add that when any party wishes to raise a question concerning potential conflict of interest in an expert witness this should appropriately be raised first in correspondence. If a query is sufficiently addressed in response, no further question need arise. If the matter is not fully addressed, then the party calling the witness can have little complaint, if the matter is raised later. Ideally therefore, such issue will then be determined in the course of case management rather than later at the trial.
The Situation in Ireland
23. In Factortame , Phillips M.R. went on to express views regarding contingency agreements in England and Wales which, I think, must be seen in their particular jurisdictional context; it is a fact that a rigid, unthinking application of a universal rule in what is called "no foal, no fee" cases in this jurisdiction might restrict, or even prevent, access to a court by meritorious persons in cases not solely confined to the realm of medical negligence. As a general rule, there is an obligation upon an expert witness to at least fix the level of their fee beforehand, so as to eliminate, or at least reduce, any possibility of the quality or validity of their evidence being impugned.
An Observation
24. The Law Reform Commission Report contains many valuable proposals, and also refers to further innovations introduced by the United Kingdom in the Civil Procedure Rules, 1998 and also in guidance produced by the English Civil Justice Council on the Duties of Experts (2012).
25. To my mind, there is a strong case that the issue of expert witnesses should be further addressed in additional Practice Directions. Amongst the duties which might be further outlined are: to disclose any connection, whether personal or otherwise, to a party in the litigation; to make known any financial or economic interest in the outcome; to acknowledge in writing that the independent overriding duty to the court takes precedence over the duty to any party; to accept the necessity of expressing an independent opinion which is a product of the expert's own research; to observe the duty to set out all material facts, assumptions, or methodology upon which views and opinions are based, including such matters as may detract from the opinion formed; to acknowledge the duty to set out matters which may detract from the opinion formed, and, obviously, the duty to address only areas within their own expertise. Such Practice Directions might also include: an obligation to indicate if any opinion expressed is qualified, or subject to revision, and that expert witnesses should, at the earliest opportunity, indicate if their views have been altered as a result of discussions with those retained by the other side and if so, in what area. Many of these are already well-recognised in the case law. In Emerald Meats , O'Donnell J. observed the advantage of experts meeting before the trial to identify the issues truly in dispute should be evident to all, as should the fact that expert witnesses are expected to apply their critical faculties to their function.
The Ikarian Reefer
26. In this appeal, reliance is placed on the case of the "Ikarian Reefer" ( National Justice Compania Naviera SA. v. Prudential Assurance Company Limited [1993] 2 Lloyd's Rep 68). There, Cresswell J. in the English High Court identified the recognised principles and responsibilities of expert witnesses. As he pointed out the list is not exhaustive. As identified in that judgment, the principles are as follows:
(1) The evidence of such witnesses should be, and be seen to be , independent and uninfluenced in form or content by the exigencies of litigation;
(2) Such witnesses should provide independent assistance to the court by way of objective, unbiased, opinion in relation to matters within their expertise and should never act as advocates;
(3) Such witnesses should state the facts or assumptions upon which their opinion is based, and consider material facts which could detract from their concluded opinion;
(4) Expert witnesses should make it clear when a particular question or issue is outside their expertise;
(5) If such witnesses consider that insufficient data is available, they should say so, and indicate that the opinion is provisional only; and
(6) If the witness is not sure that their report contains the truth, the whole truth and nothing but the truth, without some qualification, they should state that qualification in their report. If an expert witness changes his views on a material matter such change of views should be communicated (through lawyers) should the other side without delay and when appropriate to the court;
(7) Where expert evidence refers to photographs, plans, calculations analyses, measurements, survey reports or other similar documents these must be provided to the opposite party at the same time as the exchange of reports.
These duties have already been considered by our courts (see Payne v. Shovlin [2004] IEHC 430; Donegal Investment Group Plc. v. Danbywiske and ors. [2016] IECA 193, at param 51.) I go no further than to point out that, in England and Wales, these rules have been further refined both in the case law ( Anglo Group Plc. v. Winther Browne & Co, Limited & BML (Office Computers) Ltd [2000] All ER (D) 294343) and elsewhere (see generally chapter 8 of the Law Reform Commission Report, cited at para. 6 above, which contains a full consideration of the law in many common law jurisdictions, including the England and Wales).
This Case
27. In this case the appellant relies on evidence adduced in an affidavit sworn by Stephen Fitzpatrick a professional costs accountant of thirteen years' standing. This was submitted in the application to admit additional evidence. Mr. Fitzpatrick drew attention to the various fee-charges which came to light in the instant case. He described one fee-note from a consultant radiologist as being entirely within the range of predictable fees. There the fee for the report was €375 and the fee for attendance in court €1,000.
28. In the case of Mr. Drumm, the other medical consultant who testified on behalf of the respondents, Mr. Fitzpatrick identified a number of 'issues'. These included a professional fee, including an 8% reduction, of €15,000; an attendance fee to give evidence in the High Court on three days including an 8% reduction, of €6,000; as well as attendances at the defendant's solicitor's offices; travel from one urban centre to another; secretarial expenses and a claim for considering the medical records at over eight hours at €200 an hour which came to €1,600. In total, including other items, the total fee charged by Mr Drumm, and paid by the Agency was €27,230, Mr. Fitzpatrick observed that these fee items were in his professional view "unusual" and of a nature which he had not previously encountered or heard described in respect of an expert witness. He had never encountered or heard of a global fee of €27,230 being paid in respect of a local medical expert who gave evidence for only two days in court. He commented that the nominated fee of €3,000 per day for attendance at court was approximately three times the rate which he would have expected to see claimed or allowed where the expert was a local consultant. He commented that the fee of €15,000 as a professional fee of a medical expert was a claim he had not before encountered, and suggested that it resembled a retainer. He noted this item exceeded the brief fee claimed and allowed to junior counsel who is an advocate in the case.
29. In the case of the other consultant, Mr. Lanigan, Mr. Fitzpatrick noted that there was a fee charge for examination of medical reports and the plaintiffs witness reports at €175 per hour inclusive of 8% reduction coming to a total of twenty-two hours at €175 per hour, which amounted to €3,800. There was also a claim for examination of sixteen transcripts at €175 per hour, inclusive of 8% reduction, over thirty-two hours; giving rise to a claim for €5,600. The claim for attendance in the High Court on the 10th, 12th and 16th of March, 2010 amounted to a global fee of €9,000. Included also was a claim a fee for preparation of two supplementary reports of €1,000. The fee charges also included an item: "discussion with a solicitor" and "a meeting with counsel at solicitor's office". Mr. Fitzpatrick commented that the claim in respect of the examination of sixteen transcripts, over thirty-two hours, was unusual, and of a nature of which he had not previously encountered or heard described. He pointed out this claim signified four full work-days at eight hours per day studying the transcripts of evidence given in the case. He contrasted this with the fee paid to junior counsel which was less. Mr. Fitzpatrick also commented that the fee of €9,000 for the three-day attendance in court was three times the rate he would have expected to see claimed or allowed where the expert was a local consultant. He considered the claim made in respect of examination of sixteen transcripts over a period of thirty-two hours as being again "unusual".
30. As against this however, Ms, Una Doyle of Doyle Solicitors, retained on behalf of the respondents, strongly refuted any allegation that the fees submitted, and ultimately agreed to be discharged, gave rise, or were calculated to, create a conflict of interest or to influence the witnesses in any manner other than what was correct or appropriate. She entirely defended the provision of transcripts. She pointed out that it had been well known to the trial court that the expert witnesses had transcripts, and in fact at the High Court hearing the transcripts had been referred to by both sides. She also pointed out that a number of the points raised by the appellant's counsel actually relied on testimony elicited from the defendant's expert witnesses, and that no complaint had been made during the course of the trial, or in submissions, or in counsel's reply that this evidence was in any way tainted or suspect.
31. The respondents also relied on an affidavit of John Sludds, an experienced costs accountant, who supported the view that it had been necessary for the medical experts to have the transcripts in order to enable them to assist counsel in approaching the highly complex and technical medical negligence case. Mr. Sludds stated that the daily fees did not seem to be out of line with those charged in other cases where witnesses were brought from the United Kingdom. Mr. Sludds referred to a case in which counsel for the appellant had also acted, in which, the costs accountant stated, the 'charge out' rates ranged from STG£190-€300 per hour and the fee for cancellation of court appearances of less than six weeks amounted to STG£2,550. Mr. Sludds did not, however, directly address the observations made by Mr.
Fitzpatrick as to the unusual nature and the manner in which some of the fees were deemed ex post facto to be chargeable and discharged.
Discussion
32. Ultimately, counsel's criticism comes down to two essential factual issues; first, the level and nature of the fees charged, and second, the question of the overnight transcripts. The fundamental questions are whether, even at their height, the materials put before the court were such as to render the trial unsatisfactory? Does the evidence demonstrate a potential that the witness is lacking independence to such a degree as would render the evidence which was admitted as being, in fact, inadmissible, or at least capable of being so significantly discounted in weight to the extent as to render the High Court trial unsatisfactory? Put more simply the questions are whether the witnesses should be regarded as so lacking independence so as not to have the characteristics of an expert witness; or more simply still, have the witnesses put their obligations to their client above their duty to the court? If the answer to these questions is in the affirmative, the consequence will foreseeably be that their evidence will attract little or no weight, and in serious cases may in fact be inadmissible. The evidence may be positively damaging to the case of the party who called the expert to give evidence.
33. It is true that there are unusual aspects to the fee arrangements in this case. It appears that the fees were not agreed or charged until after the case was completed. As indicated earlier, this is, I think, unusual and undesirable. Fee levels should be agreed beforehand. But in fact, it is hard to avoid the impression that the true objection to the fees charged is actually as to their size. I do not think that this can be seen as per se creating a conflict of interest or derogation from the duty of independence in the circumstances of this case. It is not hard to hypothesise a situation where, for examples an internationally recognised witness might submit a significant charge which is agreed to by a principal. This would not ipso facto render the evidence of such expert inadmissible.
34. The appellant has not established that there was any connection between the size of the fees and the nature of the testimony. By way of contrast to some of the English case law cited earlier, it has not been shown that there was some part of the evidence capable of being influenced, or potentially influenced, by partiality or conflict of interest. The fact that the respondent' s witnesses testified against the appellant's witnesses, even the fact that they may have expressed firm opinions, does not create a conflict of interest. The fact that such witnesses might have expressed a view in a statement of evidence does not indicate any breach of the duties outlined in the Ikarian Reefer either.
35. There is undoubtedly a constitutional guarantee of equality before the law contained in Art. 40.3 of the Constitution. A party is entitled to a fair hearing before an impartial court. But this appeal was framed and argued in an unusual way. Counsel for the appellant relied on authorities which are in my view inapposite. He referred the court to the judgment of this court in Goode Concrete v. CRM Plc. and ors. [2015] IESC 780; [2015] 3 1.R. 493. But Goode Concrete concerns the circumstances in which a judge should recuse himself or herself in circumstances where there may be an allegation of objective bias arising from a pecuniary interest in one or other party to the case. The judgments of this Court in Goode reiterate the well-known objective bias test, that is to say the apprehension of an informed reasonable person. That test is not apposite in the context of expert witnesses. In fact, it is highly probable that without abandoning any duty of independence, an expert witness called upon to testify will do so in a manner which assists the case of the side calling him or her. Such a witness will already have expressed views in a preliminary report. By contrast, the test of objective bias will only relate to a decision maker who must be seen to be neutral. An expert will almost inevitably express an opinion on the range of relevant issues in a case, both during the case and before it. This does not mean that the witness is become so partial or lacking in independence, or has become an ‘advocate' in this case, as to render their evidence inadmissible or even lacking in weight. But the fact that an expert witness is retained for remuneration does not reduce his or her duty, from the beginning, to approach the questions which he or she is asked to consider in an objective and impartial way, always bearing in mind their overriding duties to the court. The question is whether in the circumstances of the case the witness has so derogated from his duty to such a degree as either to affect the weight to be given to the testimony or its admissibility.
36. Moreover, a logical extension of the appellant's argument leads to what may be an unforeseen outcome: that the rigid application of an ‘objective bias' test would pose insurmountable problems in litigation.
37. It is necessary to distinguish two concepts: objective bias and conflict of interest. Objective bias in a decision maker may involve the expression of a viewpoint or having a financial interest in the outcome of the case. But the application of such a principle to expert witnesses would then necessarily apply not only to one side, but both sides of a case. A law case is by its nature adversarial. An absolutist approach applying an objective bias test cannot arise. By contrast, conflict of interest applies to an expert witness who owes a duty of independence to the court. It will arise because the witness has so acted at variance from the duties governing such witness as to render the evidence they give as having reduced weight or in a serious case actually inadmissible.
38. Counsel also referred to case law under the European Convention on Human Rights ("ECHR"). It is true that Articles 6 and 13 of the ECHR respectively guarantee the rights to an impartial tribunal and an effective remedy. However, the European Court of Human Rights jurisprudence referred to by counsel in relation to the right to an impartial tribunal is not of assistance in the present case. First, the case of De Haas and Gijsels v. Belgium (App. No, 19983/92, 24th February 1997) concerned a case before the European Commission of Human Rights concerning applicants who had published articles which accused three judges and an advocate-general of the Antwerp Court of Appeal of bias in their handling of a case (para. 13). The case concerned decision makers. Similarly, counsel referred the Court to Menchinskyaya v. Russia (App. No. 42454/02, 15th April, 2009), which involved a case brought against the Russian Federation where, it was claimed, that that the principle of equality of arms had been infringed as a procurator had intervened in the judicial determination of legal proceedings in favour of a state-agency defendant. Neither of these authorities are of assistance or helpful in the case. What is in question here are witnesses, not impartial decision makers. The latter who must be and be seen to be impartial.
39. I would also comment that the arguments advanced lacked specificity, in the sense that it was not said that there was some particular area of evidence where the difference between the witnesses was such as to indicate that a conflict of interest affected that testimony. Rather the case was made only in a general way.
40. An expert witness however, should err on the side of maintaining his or her independence and objectivity. He or she should avoid conduct which renders them open to an allegation that they have become an advocate or "part of a legal team".
41. Mr. Fitzpatrick deposed to the effect that a number of the items identified were unusual in terms of being unusually high. The fees were very substantial indeed, but the most one can say by way of criticism is that they were not agreed to prior to the hearing of the High Court. Neither this, nor their size, are sufficient in themselves to raise questions reaching the threshold tests set out earlier.
Context
42. In the assessment process one cannot either ignore some of the primary findings made by the trial judge. Included here was the finding that, even by the time the appellant first came to the hospital on the 2nd January, 2002, the deterioration of his left kidney was such that the position was irremediable. Elsewhere, there was a conflict of evidence. The outcome of the critical consent issue hinged on the appellant's own credibility rather than on some conflict of evidence between the experts. It is noteworthy that, at the hearing, but apparently not beforehand, the witnesses on both sides found that there were actually some areas of evidence in which they were in agreement. That this appears to have occurred at the trial and not before reinforces the case for pre-trial meetings and consultation. Neither can one ignore the trial judge's finding on the consent issue that, during his evidence, the appellant pointed to his sister in court and stated she would confirm what he was saying about the inadequacy of Mr. Al-Safi's warnings. The trial judge found that no corroborative evidence was adduced by the plaintiff/appellants sister in relation to what was said at the consultation.
The Overnight Transcripts
43. I am unable to see that there could be any objection to the provision of overnight transcripts. It is by no means unknown for law cases to evolve during a hearing. Quite clearly, there were a number of different aspects to this 21-day case heard in the High Court. Altogether, the appellant called nine witnesses. It was not unreasonable for the respondents' expert witnesses to be kept appraised of what these witnesses were saying and the manner in which the appellant's case was developing as it proceeded, nor can I see any objection to the appellant's expert witnesses attending court should they wish to do so. The fact that this may be a departure from previous practice some years ago does not indicate conflict of interest.
Contact with legal advisers
44. I also do not see an objection, per se , to the fact that, from time to time, counsel may wish to consult with an expert witness. But, correspondingly, such witnesses must be careful to ensure that they do not ever allow a situation to evolve where they put themselves, or are put in, the position of being seen as advocates rather than as independent witnesses.
Duties of the Court
45. Courts in turn will, where necessary, be careful to ensure that a challenge to an expert witness's testimony is not conducted on the basis of an opposing party being, in the words of Alexander Pope, "willing to wound and yet afraid to strike". A prudent counsel will also bear in mind that embracing on a brave line of cross-examination, attacking the independence of an expert witness on the grounds of conflict of interest may be met with a " tu quoque " (you also) response, thereby allowing opposing counsel to raise similar issues and questions. Indeed, a prudent counsel will also bear in mind that an unjustified or unwarranted attack upon an expert witness might actually prove counterproductive in a particular case.
46. The type of issue considered earlier which might in turn raise questions about weight or admissibility, should where possible, be explored at case management in advance of a trial so as to avoid unnecessary delay in cross-examination. It is of course a different matter, if during the course of a trial, as may more often occur, counsel seeks to challenge the expertise of a particular witness.
47. Finally, I would comment that allegations of the kind under discussion in this judgment, or indeed of allegations of bias of whatever kind, should not be made lightly. The fact that a court rules against one side or the other, whether in an interlocutory application or otherwise, is not, per se , an indication of bias or predisposition. Claims of bias should not be permitted to be a type of "forum shopping".
Conclusion
48. There is no doubt that certain of the issues raised in this case are significant. There is some concern in relation to certain aspects of litigation costs and the consequences for the public to flow from these. In the past, there have been occasions where the quality of expert testimony fell very substantially below that which might be expected by a court, with the consequences described earlier. I would emphasise that these observations are not by any means confined to any one side of the case. The observations apply to defendants as much as plaintiffs. There are issues touched on in the course of this judgment where I suggest that there be further practice directions.
49. The ratio of this case is confined to principles which were identified to this Court in the course of submissions. The evidence is not sufficient to conclude, in the words of Cresswell J. in the Ikarian Reefer , that the testimony of the expert witnesses in this case was affected by " the exigencies of litigation ". Again, adopting the tests in the Ikarian Reefer , it has not been shown that the evidence was anything other than independent, objective and unbiased. No case has been advanced that there was some aspect of the evidence which fell below the range of duties identified in this, the main relevant legal authority cited to the court. There is, therefore, no sufficient basis for this Court to conclude that the trial was unsatisfactory, or that the evidence was such as might have been rendered inadmissible. There is no sufficient evidence that would warrant a finding that, even had the facts regarding the charges been known, it would have affected the weight which the trial court would have attached to the evidence or its admissibility. A plenary hearing is not warranted. In the circumstances I would dismiss the appeal, and on the grounds set out in this judgment, uphold the decision of the Court of Appeal.
